Reconciliation
at a Crossroads: The Implications of the Apology Resolution and Rice v.
Cayetano for Federal and State Programs Benefiting Native Hawaiians

Introduction
and Background

Social
Cohesion and Conflict

Hawai‘i
has been called a “laboratory of race relations” based on its carefully
cultivated image as a place where people of different cultures have historically
lived together and “fused.”[1]
This image has a certain amount of validity when Hawaii’s racial “fusion”
is contrasted to that found in most of the continental United States. For Native
Hawaiians,[2]
the fusion has been forced at times and cultural domination is a reality etched
in daily existence. In 1933, one scholar observed:

Hawai‘i
offers opportunity to the people of all races on terms that approach
uncommonly close to equality. Responding to opportunity, the peoples are
entering upon a larger social inheritance, and one may look forward to an
enrichment of this heritage through the achievement of men and women of all
races.[3]

This
observation is in sharp contrast to the conclusion reached nearly 70 years later
after a series of public dialogues on race and culture in Hawai‘i:

In
our community there is more pain than we admit and more than we tend to show
the outside world. Hawaiians mourn the loss of their culture and their land.
New immigrants—Filipinos, Samoans, Southeast Asians, African-Americans—suffer
daily indignities. The Japanese remember the bitterness of their plantation
days and their internment on the West Coast. Haoles speak of being held
accountable and demonized for events not of their making such as the 1893
overthrow.[4]

Neither
observation negates the fact that Hawaii’s first people welcomed with
considerable aloha those who were once outsiders. It is both ironic and tragic
that most Native Hawaiians have become increasingly marginalized and culturally
dominated in their own land. The domination and suppression, most Native
Hawaiians believe, have had a devastating effect on their culture. Although the
root cultures of Hawaii’s immigrants continue in their lands of origin, this
is the only homeland for the indigenous people of these islands.

Hawai‘i
is now in a state of social conflict between preserving the status quo,
returning to historical roots, and pushing the civil rights of indigenous people
forward to a new level. As the movement for change in Hawai‘i has gained
momentum, several factions have emerged representing the broad spectrum of
interests. They include those who desire nation-within-a-nation recognition, a
status similar to that of American Indians and Alaska Natives; those who desire
secession from the United States and independent nationhood status; and those
who desire the abolishment of any Native Hawaiian entitlement programs. The
basic divisive force at work is disagreement about what the relationship between
the United States and Native Hawaiians is and should be.

The
history of the United States’ wrongdoing and subsequent failure to assist
Native Hawaiians is well documented and widely acknowledged. For more than a
century, the U.S. relationship with Hawai‘i has been the subject of inquiry by
historians, legal scholars, and civil rights advocates. Because of the unique
history of the state’s annexation, the legal issues are complex. Ever since
the overthrow and annexation of their nation, Native Hawaiians have been engaged
in the struggle to regain their culture and lands and, for some, to restore
their sovereign nation status.[5]

Attempts
to remedy the effects of past government actions have been the subject of
ongoing political and judicial scrutiny, leading to the issuance of the 1993
Apology Resolution[6]
and, more recently, the U.S. Supreme Court decision in Rice v. Cayetano.[7]
While the former appeared to be a positive step in the reconciliation process in
its acknowledgment of the United States’ wrongdoing, the latter has once again
fueled the debate about race, ideology, and Hawaiian nationalism. In a split
decision, the Supreme Court decided that a voting procedure whereby only Native
Hawaiians could vote for members of the Office of Hawaiian Affairs violated the
15th Amendment of the Constitution, which prohibits race-based exclusion from
voting.[8]
The Rice decision has occurred against the backdrop of a burgeoning
movement for self-determination, fueling the feelings of anger and frustration
within the Native Hawaiian community. The Court’s decision has brought to the
forefront the legal distinctions between equal protection and race-based
favoritism and has called into question the status of Native Hawaiians. Indeed,
the very definition of who is Hawaiian has become more intangible.

The
plight of Native Hawaiians raises important and difficult questions about the
concepts of civil rights and self-determination in the United States. Despite
the legal and political discussions, a very human element lies at the core of
the debate as Native Hawaiians struggle for the preservation of identity and
culture.

Cultural
Identity

Native
Hawaiian identity is derived from the Kumulipo, or Creation Chant, which teaches
that Native Hawaiians are genealogically related to the Hawaiian islands.[9]
Dr. Lilikala Kame‘eleihiwa,[10]
director of the Center for Hawaiian Studies, University of Hawai‘i at Manoa,
provided the following succinct history of the Native Hawaiian people:

From
time immemorial, Native Hawaiians have had a special genealogical
relationship to the Hawaiian islands. Born from the mating of Earth Mother
Papa and Sky Father Wakea, we’re the Hawaiian islands and the Hawaiian
people. That’s the definition of native. We are from the land 100
generations ago. As such we have an ancient duty to love, cherish, and
cultivate our beloved grandmother, the land. The study of stewardship is
called malama ‘aina, where land is not for buying and selling, but for the
privilege of living upon. And in the reciprocal relationship, when we Native
Hawaiians care for and cultivate the land, she feeds and protects us. . . .

Even
after the Native Hawaiians were converted to Christianity and countless
notions of capitalism, which required pride of ownership of land, the King
insisted upon the right of native tenants. The rights of native tenants
include the right to enter into and live upon any unoccupied land. Since
land was an important source of food, denial to land was tantamount to
starvation and death.

And,
as you know, crown lands and government lands, once taken over by America,
became lands that America controlled and denied Native Hawaiians the right
to live upon. . . .

[M]any
Hawaiians have tried to move onto those lands to provide housing for their
people, for their children, . . . those people have been arrested, evicted,
their houses and possessions bulldozed. You’re going to hear from people
today who will say those things who have been there and through that.

A
majority of the homeless in Hawaii are Hawaiians, Native Hawaiians. We have
thousands of children every day who are Native Hawaiian going to school from
situations of homelessness, from tents, from cars, from caves. This is a
terrible thing that has been done to our people. It is a great wrong by
America.[11]

According
to the Kumulipo, the main staple of the Native Hawaiian diet is kalo (or
taro), their elder brother.[12]
The genealogical sequence also includes creatures of the sea and land.[13]
Commoners and chiefs alike were “descended from the same ancestors, Wakea and
Papa.”[14]
Native Hawaiians are also linked to Polynesians who sailed their double-hulled
canoes to the Hawaiian archipelago, navigating by ocean currents, winds, and the
stars.[15] Before Wakea and Papa,
there existed approximately 800 generations of Polynesians.[16]

For
centuries, the primary social unit for Native Hawaiians was the ‘ohana, or
extended family. A system of reciprocal obligation and support later developed
between the chiefs and the people in response to the needs encountered by an
expanding population. At the time of European contact, the Native Hawaiian
people “lived in a highly organized, self-sufficient, subsistent society based
on a system of communal land tenure with a highly sophisticated language,
religion, and culture.”[17]

The
Past that Haunts: A History of Hawaiian Annexation

Hawaii
is ours. As I look back upon the first steps in this miserable business, and
as I contemplate the means used to complete the outrage, I am ashamed of the
whole affair.[18]

—
President Grover Cleveland

To fully
understand the implications of the reconciliation process, the Supreme Court’s
decision in Rice v. Cayetano, and the
subsequent legal, political, and social fallout, it is necessary to appreciate
the historical context in which Native Hawaiians are situated. The history of
Hawaii’s overthrow, annexation, and eventual statehood, in some ways,
parallels how other native inhabitants of now-American lands have been treated.
However, while the U.S. government has a history of dissolving and displacing
many indigenous peoples, such as American Indians and other Native Americans,
the case in Hawai‘i is somewhat unique. The details of Hawaii’s history are
often disputed.

There
are some who continue to believe that Hawai‘i was not “stolen,” but rather
that the people made a conscientious decision to become a part of the United
States and to adopt the religious and cultural beliefs of Western settlers.
William Burgess, retired attorney, stated during the 2000 forum:

[T]he
fact is, historically, there is simply no justification for the argument
that the lands of Hawai‘i were stolen by the United States. The lands of
Hawai‘i under the kingdom were held for the benefit of all the subjects of
the kingdom, not just for those of Hawaiian ancestry.[19]

However,
by the U.S. government’s own admission, the accepted account of Hawaii’s
journey to statehood reveals the unlawful violation of a trust between nations
and the forced cultural domination of Hawaiians.

Political
and Cultural Transformation

In 1778–1779,
there were between 400,000 and 1 million Native Hawaiians living in the islands.[20]
At that time, control over the islands was divided among four high chiefs.[21]
Later, in 1810, a unified monarchy of the Hawaiian islands was established under
the rule of Kamehameha I, the first king of Hawai‘i. During the 1800s, the
Kingdom of Hawaii was recognized as a sovereign and independent nation. The
Hawaiian nation entered into treaties with more than 15 other nations, including
the United States.[22]
From 1826 to 1893, the United States extended full diplomatic recognition to the
kingdom and entered into various treaties and conventions involving commerce and
navigation. Despite this recognition, or perhaps because of it, there were
proactive attempts to colonize the people of Hawai‘i, if not through
government actions, through social and religious intervention. Between 1820 and
1850, more than 100 missionaries from the Congregational Church were sent to the
Kingdom of Hawaii.[23]

During
that same period, the Kingdom of Hawaii underwent many changes to its culture,
population, economy, religion, health practices, and land tenure system that
would alter Hawaiian culture permanently. Eventually, pressures from Americans
and Europeans influenced the privatization of the land and the dissolution of
complete monarchy. In 1848, the land was divided among the main chiefs (1.5
million acres), King Kamehameha III (1 million acres), and the government (1.5
million acres). All lands were granted subject to the rights of tenants, as was
the case in the traditional land tenure system.[24] Despite this, many
Hawaiians were never given the land to which they were entitled, and many were
cut off from their means of livelihood as their lands were sold to foreigners.
This trend in land loss was heightened by the passage of an act in 1850 that
allowed all residents, regardless of national citizenship, to own land.[25]
In the period following the division of the land, only 28,600 acres—out of
more than 4 million total acres—were given to approximately 8,000 farmers; yet
2,000 Westerners who resided on the islands were able to obtain large plots of
land, and by the end of the 19th century Westerners had taken over most of
Hawaii’s privately held land.[26]
The Native Hawaiian population dwindled to approximately 40,000 inhabitants.[27]
In response to the demand of the sugar industry for arduous labor in the cane
fields, more than 400,000 immigrants from China, Portugal, Japan, and the
Philippines were drawn to Hawai‘i.[28]

International
Domination and Overthrow

During
the 1880s, as Hawai‘i witnessed significant changes internally, it also faced
changing demands and threats to its independence from the international arena.
The United States clearly viewed Hawai‘i as important to its needs, including
economic development and military defense, and as a result sought to establish
political dominance. According to the Tyler Doctrine of 1842:

Considering,
therefore, that the United States possesses so very large a share of the
intercourse with those islands, it is deemed not unfit to make the
declaration that their Government seeks nevertheless no peculiar advantages,
no exclusive control over the Hawaiian Government, but is content with its
independent existence, and anxiously wishes for its security and prosperity.
Its forbearance in this respect, under the circumstances of the very large
intercourse of their citizens with the islands, would justify the
Government, should events hereafter arise, to require it, in making a
decided remonstrance against the adoption of an opposite policy by any other
power.[29]

In
addition to Friendship Treaties negotiated in 1826 and 1849, the United States
entered into a Reciprocity Treaty in 1875 providing for sale of duty-free goods
in both directions and lifting the tariff on Hawaiian sugar.[30]
Congress later sought exclusive use of Pearl Harbor in exchange for renewing the
treaty, but King Kalakaua—who had been duly elected to that position after
King Lunalilo failed to name an heir—refused.[31]
Supported by an all-Caucasian 500-man militia, American and European sugar
planters and business interests responded by forcing Kalakaua to accept major
changes in the governmental structure of the kingdom.[32]
The resulting “Bayonet Constitution” gave practical control over the
executive and legislative branches of government to Western business interests
and property owners.

Under
the new regime: (1) voting rights were extended to American and European males,
regardless of citizenship; (2) new property requirements effectively excluded
Native Hawaiians from voting for the newly formed House of Nobles;[33]
and (3) exclusive use of Pearl Harbor was ceded to the United States under the
1887 Reciprocity Treaty in exchange for lifting the tariff on Hawaiian sugar.[34]
Within two years, King Kalakaua died and his sister, Queen Lili‘uokalani,
succeeded to the throne pursuant to the kingdom’s constitution.[35]
American and European residents soon formed a “Committee of Public Safety”—whose
goal was to gain full control of the government—in response to two
developments: (1) the Queen’s efforts to develop a new constitution (as
requested in petitions by her Native Hawaiian subjects); and (2) passage of the
McKinley Tariff Act of 1891 by the U.S. Congress.[36]
Annexation-friendly President Benjamin Harrison reported through channels to the
conspirators that “if conditions in Hawaii compel you people to act as you
have indicated, and you come to Washington with an annexation proposition, you
will find an exceedingly sympathetic administration here.”[37]

In 1893,
the U.S. Minister to Hawai‘i, John Stevens, conspired with a small group of
non-Hawaiian residents of the islands to overthrow the indigenous government of
Hawai‘i. U.S. naval forces invaded the sovereign Hawaiian nation on January
16, 1893, with the intent to intimidate the government and Queen Lili‘uokalani.
The following day, representatives of American and European settlers deposed the
Queen and proclaimed the establishment of a provisional government without the
consent of the Hawaiian people or the Hawaiian government that had been in place
at the time. Many contend that these acts were in violation of the treaties that
were in place and in violation of international law. Queen Lili‘uokalani, in
an attempt to avoid the bloodshed of resistance, yielded her authority to the
U.S. government rather than the provisional government.[38]
She made the following statement:

I
Lili‘uokalani, by the Grace of God and under the Constitution of the
Hawaiian Kingdom, Queen, do hereby solemnly protest against any and all acts
done against myself and the Constitutional Government of the Hawaiian
Kingdom by certain persons claiming to have established a Provisional
Government of and for this kingdom.

That
I yield to the superior force of the United States of America whose Minister
Plenipotentiary, His Excellency John L. Stevens, has caused United States
troops to be landed at Honolulu and declared that he would support the
Provisional Government.

Now
to avoid any collision of armed forces, and perhaps the loss of life, I do
this under protest and impelled by said force yield my authority until such
time as the Government of the United States shall, upon facts being
presented to it, undo the action of its representatives and reinstate me in
the authority which I claim as the Constitutional Sovereign of the Hawaiian
Islands.[39]

On
February 1, 1893, the U.S. Minister raised the American flag and proclaimed
Hawai‘i to be a protectorate of the United States.[40]

Following
the events that occurred in Hawai‘i, President Grover Cleveland assigned
former Congressman James Blount to investigate the insurrection and overthrow of
the Hawaiian government. His investigation concluded that U.S. diplomatic and
military representatives had abused their authority and conspired to provoke the
change in government.[41]
On December 18, 1893, President Cleveland, in a message to Congress, called the
overthrow an unconstitutional “act of war” and called for restoration of the
Hawaiian monarchy.[42] Although early annexation
efforts were unsuccessful, President Cleveland’s plea went unheard, and on
July 4, 1894, the Provisional Government declared itself to be the Republic of
Hawai‘i. Six months later, while imprisoned at Iolani Palace, Queen Lili‘uokalani
was forced to officially abdicate her throne. She would later reflect on the
incidents that occurred and write:

It
had not entered our hearts to believe that these friends and allies from the
United States . . . would ever . . . seize our nation by the throat, and
pass it over to an alien power. Perhaps there is a kind of right . . . known
as the “Right of Conquest” under which robbers and marauders may
establish themselves in possession of whatsoever they are strong enough to
ravish from their fellows. If we have nourished in our bosom those who have
sought our ruin, it has been because they were of the people whom we
believed to be our dearest friends and allies. . . . [T]he people of the
Islands have no voice in determining their future, but are virtually
relegated to the condition of the aborigines of [the] American Continent.[43]

In 1896,
President Cleveland left office and, under his successor President William
McKinley, the United States annexed Hawai‘i as a territory (over the express
objections of Native Hawaiians[44]) with the signing of the
Newlands Joint Resolution. The self-declared Republic of Hawai‘i ceded
sovereignty over the islands to the United States and further ceded 1.8 million
acres (nearly half of the total lands) of Hawaiian lands, without the consent
of, or compensation to, the Native Hawaiian people or their government.[45]
This is an important point that would serve as a catalyst for later resentment
and opposition to the U.S. annexation of Hawai‘i. The indigenous people of
Hawai‘i never directly relinquished their claims to their sovereignty as a
people or over their lands. In fact, petitions were signed by more than 21,000
people, more than half of the Native Hawaiian population, objecting to the
annexation.[46]

On April
30, 1900, President McKinley signed the Organic Act for the Territory of Hawaii,
which provided a government whose leaders were appointed by the United States,
and otherwise defined the political structure and powers of the newly
established government, as well as its relationship to the United States.[47]
It was not until 20 years later that Congress would address an issue critical to
Hawaiian subsistence: land ownership and trust responsibilities. In 1921, the
Hawaiian Homes Commission Act (HHCA) was signed into law in an attempt to
preserve the declining economic and social conditions of Native Hawaiians. It
set aside 200,000 acres of land in the federal territory that was later to
become the state of Hawai‘i, in an attempt to establish a homeland for the
native people of Hawai‘i.[48]
People of 50 percent or more Hawaiian blood were to be the beneficiaries of the
act (although the original proposal would have included persons with any
Hawaiian blood). Congress designed the program to authorize the leasing of lands
for residences, farms, and ranches to Native Hawaiians for 99 years at $1 per
year.

On
August 21, 1959, Hawai‘i became the 50th state of the Union, but not without
both active and passive opposition from Native Hawaiians. Any American citizen
who had resided in Hawai‘i for one year was eligible to vote to determine
whether Hawai‘i would become a state,[49]
thus overshadowing the wishes of many Native Hawaiians. After statehood, public
lands were transferred to the state to manage, with the exception of those held
by the federal government.[50]
One of the conditions for land management was the betterment of conditions for
Native Hawaiians. In addition, the new state had to agree to administer the HHCA
as a trustee for the benefit of Native Hawaiian beneficiaries and incorporate
the HHCA into the state’s constitution.[51]
To this day, however, many argue that the state and federal governments have not
met the established trust obligations, and many people who were scheduled to
receive lands have not been given their rightful lot.[52]

Hawai‘i
Today: Diversity and Disparity

The
fantasy of happy, healthy natives living a life of ease and security, in a
bountiful and lush paradise contrasts sharply with the realities of
existence for many Hawaiian-Americans: they have been alienated from their
land, their numbers diminished by disease, they have lost political power,
they are economically insecure, and are troubled by health, education, and
social problems out of proportion to their numbers in the population.[53]

The
islands of Hawai‘i are an amalgam of immigrants of diverse backgrounds,
including Japanese, Chinese, Filipino, Portuguese, and mainland-born Americans.
Some argue that this diverse population has not hindered the ability of
individual cultures to coexist. In testimony before the Hawaii Advisory
Committee, Dr. Kenneth Conklin, a retired high school mathematics teacher and
former university professor from Massachusetts, argued that despite the influx
of immigrants to Hawai‘i and the westernization of the islands, Native
Hawaiians have been successful at preserving their culture. He stated:

[O]ver
the last 20 years or so, there has been a powerful resurgence of Hawaiian
culture and that has taken place under the auspices of the existing
governmental system where all people have equal rights under the law.

There
are many, many different cultures in Hawai‘i. All of us are in the
minority here. The various cultures of immigrants have done quite well in
maintaining and preserving their culture, and the Hawaiian renaissance of
the last 20 years has been extraordinarily powerful.[54]

Others
argue, however, that the result of the influx of immigrants has been the
alienation of Native Hawaiians who have become outsiders in their own land,
losing economic and political power to the more affluent immigrant inhabitants.
The U.S. government acknowledged in the Apology Resolution of 1993 that the
long-range economic and social changes in Hawai‘i during the 19th and early
20th centuries have been devastating to the population, health, and well-being
of the Hawaiian people. The question of how to remedy the situation, however,
remains a difficult one to answer.

Who
Is Hawaiian?

The
history of Hawaiian annexation and the subsequent cultural domination of the
island’s people have resulted in a painful search for identity and
self-realization for many in the Native Hawaiian community. By many accounts,
the colonization deprived Native Hawaiians of their fundamental human right to
identify as an independent indigenous group through cultural practices.
According to Dr. Lilikala Kame‘eleihiwa:

When
we look at all of the people who were citizens in the Kingdom of Hawaii, who
was most deprived of rights and who was most targeted with racism after the
overthrow and with the taking of Hawai‘i as an American territory? And I
submit to you that was Native Hawaiians.

First
of all, Native Hawaiians refused to . . . swear an oath of allegiance to the
Republic of Hawai‘i, refused to speak English even though Hawaiian
language was banned, and in the territorial legislatures, spoke Hawaiian.
They refused. They were breaking the law. They refused to agree that America
had a right to be in the country. These are important facts to look at
because what happens then, of course, is that they don’t get jobs, they
don’t get opportunities for economic advancement. . . .

So
who suffered? Whose identity suffered? Who had to give up their Hawaiian
names, the names of their ancestors who shaped our own character? It was
[Native] Hawaiians. That kind of anti-Hawaiian behavior that we saw with
America saying everybody should be American and no one in Hawai‘i, in the
territory, no one was supposed to have a Hawaiian name, that impacted us the
most.[55]

It is
not surprising, then, that there is much disagreement about how to define who is
Native Hawaiian, adding to the tensions between factions. Interestingly,
foreigners in Hawai‘i a century ago were classified according to cultural
groups (such as American, British, and Chinese) and not by racial terms. It is
speculated that the concept of race was not introduced until the annexation of
the islands.[56]
The term “Hawaiian” is itself non-Hawaiian. Early Hawaiians referred to
themselves as Kanaka Maoli, which translates to mean true or real person.[57]

Annexation
of Hawai‘i by the United States brought with it an awareness of the racial
practices of the mainland, which were then emulated, as in the population
census. After Hawai‘i became a state, census classifications of race that were
used in the continental United States were arbitrarily applied to Hawaiians. The
unfamiliar connection between race and color was formally introduced in Hawai‘i
with the 1960 census.[58]
Because of unfamiliarity with the imposed definitions and the lack of
specificity in earlier census counts, it would seem impossible to know with any
degree of certainty, based on census data alone, the true number of Hawaiians
and part-Hawaiians inhabiting the islands at that time.

Today,
there is a more specific, and in many ways more divisive, method for
categorizing Hawaiian people. As defined by the state’s Office of Hawaiian
Affairs, and consistent with modern federal definitions, “Native Hawaiian”
(with a capital “N”) refers to all persons of Hawaiian ancestry, regardless
of blood quantum; “native Hawaiian” (with a lower case “n”) refers to
those with 50 percent or more Hawaiian blood.[59] However, who qualifies as
a beneficiary of programs for Native Hawaiians depends on the guidelines of the
agency or enabling statute responsible for the program. For example, the
Department of Hawaiian Home Lands must follow the definition provided by the
1921 Hawaiian Homes Commission Act: “The term ‘native Hawaiian’ means any
descendant of not less than one-half of the blood of the races inhabiting the
Hawaiian Islands previous to 1778.”[60]
Some state programs use either “Hawaiian” or “Part Hawaiian” for
classification purposes. Still others use lower blood requirements for
categorization. For example, the State of Hawai‘i Department of Health’s
Health Surveillance Program includes in its counts individuals with any measure
of Hawaiian blood, making its estimate of the number of Hawaiians inhabiting the
islands significantly higher than even the self-identified count of the census.[61]

In
1960, the year after Hawaii’s statehood, the U.S. Census Bureau listed
Hawaiians under the category of “Others.”[62]
In subsequent years, Native Hawaiians fell within the census category of “Asian
or Pacific Islander.” Many Hawaiians felt that including them in this category
resulted in inadequate data for monitoring their social and economic conditions
because they were overwhelmed by the aggregate data of much larger Asian groups.
Thus, in the 2000 census “Native Hawaiian or Other Pacific Islander” was
made a separate category for the first time.[63]
Based on Office of Management and Budget (OMB) directives, this category
includes persons “having origins in any of the original people of Hawai‘i,
Guam, Samoa, or other Pacific Islands.” The directives clearly state that the
term “Native Hawaiian” does not include individuals who are native to the
state of Hawai‘i by virtue of being born there.[64]
No established criteria or qualifications (such as blood quantum levels) are
used to determine an individual’s race or ethnic classification for census
purposes.[65] (These will be important
points for the following discussions surrounding programs benefiting Native
Hawaiians and the implications of the Rice decision.)

The
classification of who is N(n)ative Hawaiian for programmatic, policy, and census
purposes lies in conflict with how many of Hawaii’s people self-identify. Many
who consider themselves direct descendents of Hawaii’s indigenous people feel
strongly about self-identification, which is seen as an important validation of
their heritage. Those Native Hawaiians who spoke before the Hawaii Advisory
Committee were passionate in their expressions of identity, as expressed by A‘o
Pohaku Rodenhurst, a Native Hawaiian kupuna:

[W]e
are proud to be Hawaiians. We have always been proud to be Hawaiians. There
is no place we can go to be Hawaiians but here. We take pride in the
sacredness of this land that was built by our forefathers and the gods of
our land that have taught people healing called ho‘oponopono. . . .

[W]e
live in peace. But nobody of the American government has made peace for us .
. . , but [they] want to force us to be Americans, force us to share
everything, even our ethnicity. They tried to steal our identity by claiming
they are Hawaiians. They are not Hawaiians. We will never give this up.

People
who do not have culture cannot understand this. People who are raised just
colonized cannot begin to understand the pain and the suffering of what our
ancestors went through, losing their lands, their identity, and being kicked
to the curb by colonization and foreign laws and rules.[66]

The
testimony of Dr. Richard Kekuni Akana Blaisdell, a physician and professor of
medicine at the University of Hawai‘i, further illustrated the importance of
self-identification and the frustration of being labeled by outsiders:

We
are Kanaka Maoli. In a very important sense, we are not Hawaiian. We are not
Native Hawaiian with a lowercase nor an uppercase capital “N.” We are
not Americans. We are not Native Americans. We are Kanaka Maoli. That is a
name by which our ancestors identified themselves. That is the way and the
manner in which we identify ourselves. So every time one of us, one of you,
uses any of these other terms, these colonial and colonized terms for us,
you are, in a sense, demeaning us.[67]

Even
among Hawaiians, however, there is disagreement over who is truly Native
Hawaiian. Some take a more inclusive approach. For example, in her statement
before the Hawaii Advisory Committee at the 2000 forum, Dr. Lilikala Kame‘eleihiwa,
director of the Center for Hawaiian Studies, University of Hawai‘i at Manoa,
cited to the United Nation’s Draft Declaration on the Rights of Indigenous
People, which states that “indigenous peoples have [the] collective and
individual right to maintain and develop distinct ethnic and cultural
characteristics and identities, including the right to self-identification.”[68]
According to Dr. Kame‘eleihiwa, this right has been abrogated by the American
government’s requirement that Native Hawaiians be 50 percent blood quantum.
She stated that her people believe Native Hawaiians are any blood quantum.[69]

On the
other end of the spectrum, however, are those who believe that individuals with
only “one drop” of Hawaiian blood are not Native Hawaiians, as expressed by
Emmett Lee Loy, a Native Hawaiian attorney who spoke at the 2000 forum. He
believes that attempts to lower the blood requirement are strategically designed
to support the interests of those who want recognition legislation passed. “What
they’re trying to do is broaden the class so much that the State of Hawai‘i
is allowed to shirk its obligations to the 50-percent-plus blood quantum.”[70]
He contends that the requirements established by the Hawaiian Homes Commission
Act are the ones that should remain in effect.

Others
spoke out in the 2000 forum saying that the practice of defining who is Hawaiian
by blood quantum pits Hawaiians against each other, in effect causing them to
compete for both recognition and the limited available resources. William
Lawson, a Hawai‘i resident, spoke to this issue by stating that the existence
of a blood quantum level:

is a
blatant discriminatory mandate whereby those of Hawaiian ancestry with 50
percent or higher blood quantum have been pitted against those of less than
49 percent quantum or less of the qualifying mandate. What blood quantum
makes a Caucasian a Caucasian or what quantum makes a Filipino a Filipino or
an Afro-American an Afro-American, and so on and so forth?[71]

Demographics

As has
been discussed, the once-robust Hawaiian population faced a severe reduction in
the years following European contact. In fact, after the first official census
of the islands in 1853, it was estimated that the population of Native Hawaiians
was approximately 71,000 people.[72]
One century after European contact, the population of Native Hawaiians had
declined nearly 80 percent. In the period between 1853 and 1896, the percentage
of inhabitants who were Native Hawaiian decreased from 95.8 percent to 28.5
percent of the total population. During that same period, the percentage of
inhabitants who were part Hawaiian increased from 1.3 percent to 7.8 percent.[73]
Much of the population decrease was the result of diseases brought by European
settlers and was accelerated by low fertility rates, high infant mortality, poor
housing, inadequate medical care, inferior sanitation, hunger and malnutrition,
and alcohol and tobacco use. Many of these unfortunate realities still exist
today, more than two centuries since European contact.[74]

During
the last century, while there has been an overall increase in Hawaii’s
population by sevenfold, most of the increase can be attributed to an influx of
foreign laborers who were brought to the islands to compensate for the limited
availability of local labor.[75]
By 1990, the total population of Hawai‘i was approximately 1.1 million, with
12.5 percent (138,742) being Native Hawaiian and 87.5 percent being
non-Hawaiian.[76] (By 1999 it was estimated
that the total population of Hawai‘i was close to 1.2 million.[77])
Also in 1990, the most recent year from which census data are available, 33.4
percent of Hawaii’s population was Caucasian, 22.3 percent was Japanese, 15.2
percent was Filipino, 6.2 percent was Chinese, and 10.4 percent was of other
races or ethnicities.[78]

Today,
most Native Hawaiians are of mixed ancestry, and it is estimated that fewer than
6,000 full-blooded Hawaiians remain.[79]
In 1984, the Office of Hawaiian Affairs conducted the only modern-day study of
Native Hawaiian blood quantum. It found that one in three Native Hawaiians had
between 50 and 100 percent blood quantum while only one in 25 Native Hawaiians
had 100 percent blood quantum. More than 60 percent of Native Hawaiians had less
than 50 percent blood quantum.[80]
Individuals 18 years of age and younger make up the majority of the Native
Hawaiian population, and while the median age of Hawai‘i residents is 32.6
years, the median age of Native Hawaiians is 25.8 years.[81]

Socioeconomic
Profile of Hawaiians Today

An
understanding of the socioeconomic status of Native Hawaiians is necessary to
conceptualize the potential implications of the Rice
decision and any future decisions that question the right of Native Hawaiians to
maintain a special relationship with the State of Hawai‘i and the federal
government. The socioeconomic statistics depicting Native Hawaiians are
startling, lending credence to the need for initiatives aimed at empowerment and
the betterment of the Hawaiian condition. For example, in comparison to other
residents of Hawai‘i, Native Hawaiians have disproportionately low levels of
employment, homeownership, income security, and education. Conversely, they have
disproportionately high levels of substance and physical abuse, medical
problems, impaired mental health, and homelessness.[82]

Income

Reviewing
the economic standing of Native Hawaiians provides evidence of the disparities
that exist between racial and ethnic groups in Hawai‘i. While the median
family income has generally increased in Hawai‘i over the years, Native
Hawaiians remain at the bottom of the economic ladder with one of the lowest
family income averages of any racial group. According to the 1990 census, the
average family income for Native Hawaiians is $9,000 less than the average
family income for the state.[83]
Native Hawaiians are also the largest racial group with families below the
poverty level, with families on public assistance, and with individuals 200
percent below the poverty level.[84]
While 89 percent of the Native Hawaiian population was employed in 1997, this is
the lowest employment rate of any racial or ethnic group in Hawai‘i.[85]
It is estimated that 6.4 percent of the total civilian labor force in Hawai‘i
is unemployed. Comparatively, 10.8 percent of the Native Hawaiian civilian labor
force is unemployed.[86]
(It should be noted that it is also unclear how many of these workers are only
employed part time.)

In
addition to having lower employment rates overall, Native Hawaiians are also
disproportionately represented in a few industries. While they make up 10.8
percent of employed persons over age 16, they are overrepresented in the
entertainment and recreation (15.3 percent), transportation, communications, and
public utilities (15.1 percent), and construction (14.5 percent) industries.[87]
By far, and not surprising given the tourism industry’s prevalence in Hawai‘i,
the largest numbers of Native Hawaiians are employed in retail trade (9,823).
There are also occupational areas in which Native Hawaiians are over- or
underrepresented.[88]
Most notably, Native Hawaiians are missing from the ranks of managers and other
professionals. Only 7.4 percent of employed Native Hawaiians are in managerial
or professional specialty occupations. On the other hand, approximately 17
percent are operators, fabricators, and laborers; and 12.8 percent are in
service occupations, clustered most notably in police and firefighting jobs.[89]

Native
Hawaiians are also less likely than other racial or ethnic groups to own their
own businesses. In 1987 (the most recent year for which these data are
available) only 8.1 percent of all minority-owned business firms in Hawai‘i
were owned by Native Hawaiians, as compared with 50.2 percent owned by persons
of Japanese descent, 15.8 percent owned by those of Chinese descent, and 12.4
percent by those of Filipino descent.[90]

As a
result of lower earnings and job stratification, Native Hawaiian households
receive public financial assistance at more than twice the rate (14.5 percent)
of the rest of the state (6.8 percent).[91]
In two areas of the state, Wahiawa and Waipahu, as many as one-third of the
Native Hawaiian households receive public assistance.[92]
Native Hawaiians are also the largest single ethnic group in Hawai‘i receiving
Aid to Families with Dependent Children (AFDC) and food stamps. It is speculated
that this is due to the large number of single-parent families and the generally
low family income levels of Native Hawaiians.[93]
While Native Hawaiians make up 9 percent of the married couple families in Hawai‘i,
they make up close to 18 percent of the female head of household families.[94]
If one looks at individuals receiving assistance rather than households, the
number increases dramatically, with 27.4 percent of the individuals receiving
assistance being Native Hawaiian (in 1997).[95]

Education

Educational
attainment is directly related to income and standard of living. Based on the
socioeconomic disadvantages discussed thus far, it should come as no surprise
that once again Native Hawaiians fare worse than other residents of Hawai‘i.
The majority of students in Hawai‘i are enrolled in public schools (83
percent) at a rate slightly less than the national public school enrollment of
89 percent. In the 1997–1998 academic year, 47,435 (or more than 25 percent)
of Hawaii’s public school students were Native Hawaiians.[96]

Despite
their visible presence in the public school system, Native Hawaiian students do
not appear to derive the same benefits from the educational experience as their
non-Hawaiian classmates. Beginning at an early age, educational disparities are
evident. According to standardized test scores, based on the Peabody Picture
Vocabulary Test-Revised (PPVT-R), and given the kinds of schools that exist,
Native Hawaiian and Filipino children are less ready for kindergarten success
than other children.[97]
(However, successful experiences with the Hawaiian Language Immersion Program,
discussed below, may affect this conclusion. For example, enrollments in
Hawaiian language courses at the University of Hawai‘i have grown
significantly in recent years.)

The lack
of educational achievement of older Native Hawaiian students also reflects a
disturbing pattern. Only slightly more than 50 percent of Native Hawaiians
between the ages of 18 and 24 have earned a high school diploma or equivalent.
According to the 1990 census, approximately 23 percent of Native Hawaiians over
the age of 25 have not graduated from high school or earned a high school
equivalent.[98]

As would
be expected given these educational outcomes, relatively few Native Hawaiians
attend college. In fall 1997 approximately 6,200 Native Hawaiian students were
enrolled in the University of Hawai‘i system, making up 13.6 percent of the
university’s student body.[99]
(According to the 1990 census there were another 7,840 Native Hawaiians
attending college on the U.S. mainland, although it is unclear whether they are
Hawaiians who left the islands to pursue an education or whether they are
Hawaiians raised on the mainland.[100])
The University of Hawai‘i system includes three four-year campuses and seven
community colleges. Approximately one-third of Native Hawaiians in the system
attend one of the three university campuses; the remaining two-thirds attend one
of the community colleges.[101]

Enrollment
numbers are not an indication of graduation rates. Only 27.5 percent of Native
Hawaiians between the ages of 18 and 24 have some college or an associate
degree, and only 2.1 percent of that age group have a bachelor’s degree or
higher.[102]
Native Hawaiians or Part Hawaiians earned only 10.2 percent (777) of all degrees
awarded in academic year 1996–1997.[103]
Of the 777 degrees earned by Native Hawaiians in the 1996–1997 school year,
the most common degrees earned were bachelor’s (277), associate in science
(189), and associate in arts (131). Only 17 Native Hawaiians received
professional degrees such as law or medicine, and only one received a doctoral
degree.[104]

According
to Dr. Lilikala Kame‘eleihiwa, director of the Center for Hawaiian Studies,
University of Hawai‘i at Manoa, Native Hawaiians are not encouraged to attend
the university. This problem begins in the public school system, where large
numbers of Native Hawaiians do not complete high school. In addition, there is a
lack of emphasis on Hawaiian studies, which compounds Native Hawaiians’ lack
of participation in educational programs. For example, according to Dr. Kame‘eleihiwa,
the curriculum she teaches is seriously underfunded at the University of Hawai‘i,
and there are only five professors, who teach 1,500 students each year. She
stated that the university is an unfriendly place for Native Hawaiians because
of the prevalence of anti-Hawaiian bias there. Seventy-five percent of the
professors at the University of Hawai‘i are white, and only 2 percent of the
tenured faculty are Native Hawaiian.[105]

Despite
these barriers, this academic year the number of Native Hawaiian undergraduate
students has increased to 10 percent, a figure that is larger than past years.
It is predicted that by the 2005–2006 academic year, 8,466 Native Hawaiian
students will be enrolled in the University of Hawai‘i system. Dr. Kame‘eleihiwa
attributes this attendance rate to the money allocated for tuition waivers and
financial aid from the federal government, without which many Native Hawaiian
students would not be in school.[106]

Also
important to increasing the numbers of Native Hawaiians in college is the
creation of an environment that fosters self-identity and cultural pride. Nancy
Stone, former teacher and a non-Hawaiian candidate for the Office of Hawaiian
Affairs’ board of trustees, testified before the Hawaii Advisory Committee
about her experiences teaching in Hawai‘i:

I’ve
seen, as a teacher in this state, firsthand what happens to the children
here and it breaks my heart and I can’t teach here anymore. They fail to
recognize who these people are and what they love, their traditional
Hawaiian values that they learn at home, and yet they go into school and
they’re taught a whole new system and they’re taught not to feel good
about themselves and not to cherish those things, and there’s a conflict.[107]

There
have been attempts to include the Hawaiian culture within the school system, for
example through the Hawaiian Language Immersion Program. In the program,
students are taught the content of the regular education program in the Hawaiian
language. In the 1997–1998 academic year, there were 1,351 students enrolled
in the immersion program.[108]
It is projected that this number will increase to 3,397 by the 2005–2006
academic year.[109]

Dr. Kame‘eleihiwa
is also in the process of establishing a research institute that would create
new curriculum for the 48,000 Hawaiian children not served by the Hawaiian
immersion schools. She testified at the forum that:

The
curriculum currently in English that our children are faced with every day
and, of course, all the non-native children read as well, is really racist.
It’s very anti-Hawaiian. We need to change it. We need to do better than
we have done in the past. This terrible curriculum has contributed greatly
to the poor self-image of our children. It feeds into higher rates of drop
out from high school, also the high rates of suicide and crime and eventual
prison that our people face.[110]

Dr.
Peter Hanohano, director of the Native Hawaiian Education Council, agreed
stating that native and indigenous people around the world have “all suffered
from colonization and the impact and the clash of cultures.” He contends that
the education Native Hawaiians need is “education for self-determination,”
whereby education is used as a vehicle for personal and cultural growth.[111]

Land

The
relationship with and respect for the land is an important aspect of
Hawaiian culture. According to testimony given by Dr. Kame‘eleihiwa:

From
time immemorial, Native Hawaiians have had a special genealogical
relationship to the Hawaiian islands. . . . As such, we have an ancient duty
to love, cherish, and cultivate our beloved grandmother, the land. The study
of stewardship is called malama ‘ainawhere land is not for buying and selling, but for the privilege of
living upon. And in the reciprocal relationship, when we Native Hawaiians
care for and cultivate the land, she feeds and protects us.[112]

The land
is viewed as the main mode of subsistence for Native Hawaiians. Dr. Blaisdell
stated:

By
“land” we mean our sacred environment. Without it, we are not a people,
we have no culture. Our existence is oneness with our sacred environment. .
. . [I]t’s the land that feeds us. That’s what the term ‘aina means,
land which feeds us. We don’t eat unless we have land. What we eat has to
be junk food, processed food, and that’s why we have the highest rates for
obesity and hypertension and diabetes and heart disease. So the only answer
to our survival is to return all of our lands.[113]

Since
Westerners first began to occupy the land that once belonged to Native
Hawaiians, a recurring issue for Native Hawaiians has been land ownership and
land entitlement. In an attempt to remedy the effects of the overthrow of Hawai‘i
on Native Hawaiians, the Hawaiian Homes Commission Act was passed in 1921. The
purpose was to set aside 200,000 acres of land for homesteading by Native
Hawaiians. However, the lands available to Native Hawaiians through the Hawaiian
Homes Commission Act traditionally have not been suited for living and
development. The highly productive agricultural and forest lands were already
disposed of to private interests and so, according to Ray Soon, chairman of the
Hawaiian Homes Commission, the Hawaiian Homes Program was left with river beds,
mountain cliffs, and other unusable lands, as well as lands in distant islands
with fewer job opportunities.[114]

Land use
and land ownership have also dramatically changed during the period since
Western occupation, with an increase in nonagricultural uses of the land. Today,
the state and federal governments and six private landholders administer most of
the land.[115]
In all, government (federal, state, and county combined) owns about 38 percent
of Hawaii’s land. The six private landholders own another 36 percent, leaving
26 percent of the lands for other private use.

In 1996,
approximately 95 percent of all lands in Hawai‘i were designated as
conservation and agricultural districts, while urban land made up 4 percent.
Increasing competition for use of available land and increasing demand for
housing are forcing the reclassification of lands currently designated for
conservation and agricultural uses.[116]
Approximately 73.6 percent of Hawaii’s population live in a metropolitan area.[117]
Further, nearly two-thirds of the Native Hawaiian population still living in
Hawai‘i reside in the urbanized areas of the city and county of Honolulu.[118]
In light of these developments, the ceded lands and Hawaiian homelands proved a
key source of potential land to ease overcrowding. Native Hawaiians are outraged
by this prospect.

As of
January 1995, about 14 percent of the state’s public lands were allocated to
the Department of Hawaiian Home Lands.[119]
Only 21 percent of the Hawaiian homelands are currently being used for
homesteads.[120] Nearly 19,000 Native
Hawaiian applicants are still waiting for their share of the remaining lands.[121]
Thousands of others who were on the waiting list for homelands have died without
receiving their allotment.

Provoked
by a history of mismanagement of ceded lands, Native Hawaiian groups want to
regain control over their fair share of the one million plus acres held under
the Ceded Lands Trust and the Hawaiian Home Lands Trust, currently administered
by the State of Hawai‘i. Native Hawaiians, although beneficiaries of the
trust, thus far have not benefited much from the state’s administration of the
lands.

Housing

As has
been discussed, the immigration of Western settlers and the occupation of
once-Hawaiian soil limited the land available for use by Native Hawaiians. In
the modern era, the housing shortage experienced by Native Hawaiians is the
result of several factors, including overpopulation, limited available land for
development, and high costs.[122]
Although housing conditions have improved in recent years, few Native Hawaiians
are homeowners. Most Native Hawaiians either share homes with their parents or
other relatives or live in crowded rental units.[123]
Between 1980 and 1995, the number of housing units in Hawai‘i increased by
nearly 30 percent.[124]
However, the 1990 census estimated that only 10 percent of the housing units in
Hawai‘i were occupied by Native Hawaiians, as compared with nearly 40 percent
occupied by Caucasians.[125]
Further, the number of persons per household is larger for Native Hawaiians at
close to 4.0 than for any other racial or ethnic group, except for Filipinos.[126]

The
characteristics of Native Hawaiians who own housing units do not differ
significantly from the state’s overall patterns of owner-occupied units.
However, half of Native Hawaiians rent housing with three or fewer rooms per
unit.[127] In addition, nearly 50
percent of Native Hawaiians live in rental units with four or more individuals
while more than 50 percent of the state’s overall residents live in rental
households of two or fewer occupants.[128]

Lower
income results in less available funds for living expenses, and thus often less
desirable living conditions. The mean value of housing units owned by Native
Hawaiians is the lowest of all the major racial/ethnic groups in Hawai‘i, and
is 22 percent less than the average value of those owned by the overall state
population.[129]
The average rent paid by Native Hawaiians is also among the lowest in the state,
and is only 71 percent of the rental fee paid by Caucasians.[130]

Homelessness
also appears to be a prevalent problem in Hawai‘i. In 1992, one in 230 state
residents was homeless, one in 13 was among the “hidden homeless,” i.e.,
they were sharing accommodations with friends or relatives, and one in four was
at risk of becoming homeless.[131]
Caucasians are the majority in each of these groups, but Native Hawaiians are
the second largest group of the truly homeless.[132]

In
short, according to testimony given by Ray Soon, chairman of the Hawaiian Homes
Commission, Native Hawaiians suffer the worst housing conditions of any group in
Hawai‘i. Studies have shown that half of the Hawaiian Home Commission’s
applicants suffer overcrowding, and one-third pay more than 30 percent of their
income for shelter. Overall, 49 percent of Native Hawaiian households experience
housing problems, compared with 29 percent of the U.S. population.[133]

Health

Although
health is not generally considered a socioeconomic indicator, it does have an
effect on one’s socioeconomic status and, conversely, socioeconomic status can
be linked to health. For example, individuals with lower incomes tend to have
higher health risks, including less access to preventive care. Given the low
income and education levels of Native Hawaiians, it should not be surprising
that many also experience poor health.

Dr.
Richard Kekuni Akana Blaisdell, a physician and professor of medicine at the
University of Hawai‘i,[134]
testified that Native Hawaiians have the worst health indicators of all ethnic
peoples in Hawai‘i. He stated that it has been predicted that by the year 2044
there will be no remaining pure-blooded Kanaka Maoli, as they will be an extinct
people. Native Hawaiians have the highest mortality rates for the major causes
of death, including heart disease, cancer, stroke, injuries, infections, and
diabetes. They also suffer the highest rates for chronic diseases.

The
Office of Hawaiian Affairs’ Native Hawaiian Data Book outlines some specific health conditions.
For example, Native Hawaiians are second only to Caucasians in incidences of
cancer.[135] Heart disease incidence
among Native Hawaiians in the 36–65 age group is 1.3 times that of other
racial groups.[136]
Also of great concern for both older and younger Native Hawaiians is
hypertension.[137]
Together, heart disease and cancer account for more than half of the deaths
among Native Hawaiians in Hawai‘i. Native Hawaiians also account for 73
percent of the deaths of individuals under 18 years old.[138]
Diabetes is one of the most common chronic conditions among Native Hawaiians.
Hawaiians aged 35 years and older make up 44 percent of all cases of diabetes
recorded in the state.[139]

There
are health risks and lifestyle factors that also disproportionately affect the
Native Hawaiian community. Native Hawaiians are the racial group with the
highest proportion of risk factors leading to illness, disability, and premature
death.[140]
According to the Hawai‘i Department of Health’s Behavioral Risk Factor
Surveillance System, Native Hawaiians have the highest rate of obesity, twice
the rate of the state; Native Hawaiians have higher rates of smoking and alcohol
consumption compared with other racial groups; and Native Hawaiians have the
highest rate of drinking-and-driving.[141]

The
health conditions faced by Native Hawaiians are compounded by the difficulties
many face gaining access to available health programs. Statistics show that
large segments of the Native Hawaiian population rely on public health care
services, an indication that low income is a barrier to full access to health
care systems.[142] Another barrier is the
ability to obtain culturally relevant care. According to Dr. Blaisdell’s
testimony:

Many
of our people are very reluctant to enter into the health system because it’s
a Western system, and so one of the efforts of the Native Hawaiian health
care program is to have culturally relevant, culturally competent health
care workers, and to have in our system traditional healers as well. So it
comes back to revitalizing our culture and incorporating our culture into
the modern Western health system.[143]

The
Path To Reconciliation and Reparation

Until
we have a deeper factual understanding of how we came to our current plight
it will be difficult for us to receive redress due us. Most importantly,
only when these wrongs are corrected will our keiki [children] have the
opportunity to acquire self-esteem necessary to enjoy the lives they
deserve.[144]

The
current socioeconomic and health conditions of Native Hawaiians beg intervention
and redress. It can be argued that relief will only be achieved through a
collaborative effort: a deep commitment to reconciliation on the part of the
U.S. government and a strong initiative to develop programs addressing the needs
of the Native Hawaiian community on the part of the State of Hawai‘i. Remedial
attempts have been made in recent years, including the passage of both state and
federal legislation; however, the impact of these efforts remains to be seen.

Legislative
Attempts

More
than 150 federal laws, including the Hawaiian Homes Commission Act and the
Admission Act, explicitly acknowledge and describe the unique political
relationship between the United States and the Native Hawaiian people.[145] Congress’ adoption of
the 1993 Apology Resolution reinforced and reaffirmed the federal government’s
trust obligations to Native Hawaiians. Congress signed this joint resolution “[t]o
acknowledge the 100th anniversary of the January 17, 1893, overthrow of the
Kingdom of Hawai‘i, and to offer an apology to Native Hawaiians on behalf of
the United States for the overthrow of the Kingdom of Hawai‘i.”[146] The act further
characterized the overthrow as a violation of international law and acknowledged
that the lands were obtained without the consent of or compensation to the
people of Hawai‘i, resulting in the denial of self-determination. Through the
Apology Resolution, Congress and the President committed themselves to reconcile
with the native people of Hawai‘i.[147]

The
notion that the Apology Resolution represents proof that Congress intended to
provide redress for the wrongs committed against Native Hawaiians following the
overthrow and annexation of their kingdom was echoed at both the 1998 and 2000
Advisory Committee forums. For example, Sherry Broder, attorney for the Office
of Hawaiian Affairs, stated that in the Apology Resolution, Congress admitted
that the taking of the crown and government lands was without the consent or
compensation of the people. It also acknowledged that the overthrow resulted in
the suppression of the right to self-determination.[148]
Carl Christensen, attorney for the Native Hawaiian Legal Corporation,
acknowledged that the Apology Resolution did not create any new federal rights,
but asserted that it does serve an important evidentiary purpose as an admission
that establishes the background facts upon which litigation may be based.[149]

However
symbolic, the Apology Resolution does not remedy the effects annexation has had
on the people of Hawai‘i. Some would argue that the commitment to reconcile
with Native Hawaiians must be reinforced through real actions on the part of the
federal government. The following discussion highlights the promises and
shortcomings of the Apology Resolution as expressed in the Advisory Committee’s
1998 community forum.

Analyzing
the Apology Resolution

Concern
about the apparent failure to implement concrete reconciliation efforts in the
five years after adoption of the Apology Resolution led the Hawaii Advisory
Committee to conduct its August 22, 1998, community forum.[150]
The session gathered information on actions taken since the Apology Resolution
was signed into law on November 23, 1993, to provide a foundation for and to
support reconciliation efforts between the United States and Native Hawaiians.

The
Advisory Committee began its 1998 community forum with an opening chant, or ‘oli,
consistent with traditional Native Hawaiian protocol. The ‘oli provided
important historical background, welcomed the participants, and encouraged
thoughtful exchange and sharing of information.

The
first panel of speakers addressed the purpose and meanings of the Apology
Resolution. Esther Kia‘aina, representing the act’s primary sponsor, U.S.
Senator Daniel K. Akaka, explained that apology resolutions were introduced in
different forms four times during the 101st, 102nd, and 103rd Congresses.[151]
Although some suggest this “was essentially a cynical action by an
uninterested Congress,”[152] the facts suggest
otherwise. Concerns in the Senate about the implications of the proposed
resolution forced a roll call vote, which was decided in favor of passage by a
65 to 34 margin.[153]

In
the final analysis, the Apology Resolution is a “necessary step” in “an
evolving and continuing process whereby the federal government can make amends
for some of its past wrongs.”[154]
Two of the measure’s underlying goals are to (1) educate the American public
and the Congress on the history of U.S. involvement in the overthrow and its
aftermath; and (2) set the record straight regarding the 1983 Native Hawaiians
Study Commission’s (NHSC) majority report, which concluded that the U.S.
government was not liable for the loss of sovereignty of lands of the Hawaiian
people in the 1893 overthrow.[155]
Attorney James Mee, who expressed concerns about specific findings and further
reservations regarding implementation of the Apology Resolution, nevertheless
acknowledged that the resolution’s opponents in the U.S. Senate did not
challenge its intended result of correcting inaccuracies contained in the NHSC’s
majority report.[156]

The NHSC
was created by Congress less than a month before President Ronald Reagan entered
office.[157]
Kina‘u Boyd Kamali‘i, chairperson of the NHSC and author of its minority
report (joined by the two other commissioners from Hawai‘i), testified as a
kupuna on September 28, 2000, that the commission was “dead before we started.”[158]
The minority report explains that an official in the administration of newly
installed President Reagan labeled the study a “boondoggle.”[159]
President Jimmy Carter’s initial appointees were dismissed, and it appeared
that the study would not take place. However, Kamali‘i (then the minority
leader of the State House of Representatives and former chairperson of the
Reagan campaign in Hawai‘i) was able to persuade the administration to
implement the NHSC’s mandate. According to the minority report, however, the
six “Mainland Commissioners” who authored the majority report “lack[ed] .
. . serious intent” as demonstrated by a flawed methodology that failed to
consider available primary sources.[160]

Lingering
Effects of the Overthrow, Rooted in Historical Federal Ambivalence

The
Native Hawaiians Study Commission’s experience is not an isolated example of
the historically shifting political winds that have characterized the
relationship between Native Hawaiians and the United States.[161]
One of the recurring themes at the Hawaii Advisory Committee’s 1998 community
forum was the adverse impact of these shifting attitudes upon Native Hawaiians.

The
awkward transition between the Carter and Reagan administrations described in
the preceding section is rooted in the ambivalence that characterized the
Harrison-Cleveland-McKinley transitions discussed earlier in this report.
Several speakers referred to the shifting federal policy toward Native Hawaiians
at the end of the 20th century. Mililani Trask, a Native Hawaiian attorney and
at that time Kia‘aina (governor) of Ka Lahui Hawai‘i, suggested that the
administrative confusion is best illustrated through the history of opinions
issued by the Department of the Interior.[162]

The
first such opinion, drafted under the Carter administration on August 27, 1979,
in response to an inquiry by the Hawaii Advisory Committee, acknowledged the
existence of a trust relationship between the federal government and Native
Hawaiians.[163]
Ten years later, the department stated that its earlier opinion was not correct
and, the following year, expressly “disclaimed any trusteeship role” in a
letter to U.S. Commission on Civil Rights Chairman Arthur Fletcher.[164]
On January 19, 1993, during the final days of President George H.W. Bush’s
administration, the department issued the so-called “Sansonetti opinion”
(which is based in large part upon the now-discredited NHSC majority report),
concluding that the federal government had no trust responsibility to Native
Hawaiians either before statehood or thereafter.[165]
On November 15, 1993, the administration of President William Jefferson Clinton
issued the so-called “Leshy opinion” withdrawing the Sansonetti opinion, but
declining to bring legal action to enforce provisions of federal statutes
providing entitlements for Native Hawaiians.[166]

Community
leaders appearing before the Advisory Committee painted a grim picture of the
educational, health, and social status of Native Hawaiians, asserting that these
problems are a major consequence of the “illegal overthrow” of their
monarchy and the loss of sovereignty. Dr. Richard Kekuni Blaisdell opined that
it is the impact of colonization by foreign settlers on indigenous people that
explains why social, health, and economic statistics are worse for Kanaka Maoli
than for all other ethnic peoples in Hawai‘i.[167] Therefore, the
distinction between non-Native Hawaiians and Kanaka Maoli under the Apology
Resolution is not only justified, but is “essential.”[168]
The chairperson of the Office of Hawaiian Affairs, A. Frenchy DeSoto, agreed,
emphasizing that “this isn’t a racial issue. . . . They have taken my
dignity. They have stripped me of my nationhood, my language, everything.”[169]

Kina‘u
Kamali‘i reiterated that the NHSC’s findings regarding the economic,
educational, and health needs of Native Hawaiians were unanimous.[170] Mililani Trask referred
to the Urban Institute report of 1996, which shows that Native Hawaiians have
the poorest housing conditions in the United States.[171]
DeSoto later urged the Advisory Committee to compare the NHSC’s findings with
the 1998 Native Hawaiian Data Book, which reveals “virtually no
improvement in the statistics on Hawaiians. . . .”[172]
When asked how Native Hawaiians could be made healthy again, Dr. Blaisdell
referred to the opening chant (conducted by Keali‘i Gora, Lilikala Kame‘eleihiwa,
and Kanalu Young)—which invoked lessons derived from the Kumulipo[173]—and
explained: “We come from the land. Our land has been taken from us. Without
our land we are not a people. Return our land, and we will be a whole people
again.”[174]

Defining
the Parameters of Reconciliation

Participants
in both Advisory Committee forums alleged that the question of political status
for Native Hawaiians has proven to be a stumbling block for redress of community
concerns. Other presenters suggested that the picture is further clouded by
constitutional and legal constraints that have been applied to prevent Native
Hawaiians from seeking judicial remedies. John Goemans, the attorney who
represented the plaintiff in Rice v.
Cayetano, opined that “it seems clear to me that if you are talking about
an Apology Resolution, and the issue of reconciliation is the end product of
that resolution, you are talking about an Apology Resolution that is extended to
only a certain small segment—relatively small segment of the population of the
Kingdom of Hawaii.”[175]
Native Hawaiian attorney Poka Laenui made a similar point, though in a more
complex fashion and with an apparently different intent:

One
of the major failings of the United States is its twisting the issue of
Hawaiian sovereignty from a national to a racial question. The Congress has
taken the act of overthrowing the government of an independent nation-state,
and suggests reconciliation only to the Native Hawaiian people. . . . One of
the reasons for this problem in American distinction is a strong indigenous
movement occurring here, and in America, and in the rest of the world. . . .
Many people, including Native Hawaiians, have not understood the
distinction, and speak of indigenous rights and Hawaiian sovereignty as if
they are one and the same. They are not the same. But they are not a matter
of either/or as well. It is not a question of choosing in favor of Native
Hawaiian rights or Hawaiian sovereignty. Both rights should be available.[176]

Professor
Kanalu Young also acknowledged the multiracial aspects of the Hawaiian Kingdom,
offering that the issue “needs to be reconsidered and worked into the mix . .
. [b]ut it is something that will be done in the future. . .”[177]
According to Professor Young, the reconciliation process should not be “at the
exclusion of other people living in these islands,” but Native Hawaiians need
to take the lead.[178]

In a
written statement provided to the Advisory Committee at the 2000 forum, Senator
Daniel Akaka stated:

The
process of reconciliation is a process of healing, which should not be
viewed as one particular issue or a narrowly defined process. It should be
viewed as a multitude of positive steps between Native Hawaiians and the
federal government to improve the understanding between each party, to
improve the social and economic conditions of Native Hawaiians, and to
resolve long standing matters of political status and land claims.[179]

Senator
Akaka’s representative explained further that the process of reconciliation,
or ho‘oponopono,[180]
should not be defined by the federal government unilaterally, but instead
developed mutually with Native Hawaiians.[181]
Several other presenters stressed the need for reconciliation to take place in
the communities of Hawai‘i.[182]
Mililani Trask added that the U.S. attorney general should hold a “listening
conference” in Hawaii analogous to those held with Native Americans.[183]

Reverend
Kaleo Patterson provided an example of a largely successful process of apology
and redress. He commended the efforts of Asian American churches in Hawai‘i,
for example, who provided leadership in pushing for an apology by local churches
for their complicity in the overthrow and also provided Native Hawaiians with a
$3 million redress package.[184]
Rev. Patterson noted that two-thirds of Native Hawaiians left their churches
after the overthrow.[185]
Attorney James Mee provided some support for this observation when he stated
that his family belonged to the church Queen Lili‘uokalani joined upon leaving
her former place of worship in the aftermath of the overthrow.[186]

Rev.
Patterson described the process within the church as a “decolonization of the
soul.”[187]
However, he lamented the enormous task of educating American churches that “don’t
even understand what is going on in Indian country, much less jump to Hawai‘i
now, and deal with Don Ho and Magnum PI and all that. . . .”[188]

Attorney
Mee, who described himself as “part Hawaiian” with “a lot of haole in me,”
pointed out that “during the overthrow and after, there was a lot of division
among people in Hawai‘i.”[189]
He observed that the Liberal Party, which was composed primarily of Native
Hawaiians, actually called for the establishment of a republic rather than a
monarchy.[190] Nevertheless, as Mee
acknowledged, (1) the Liberal Party’s concern related in part to its
unhappiness with the Reform/Missionary Party that was in control of the
government at that time, and (2) some members of the Liberal Party changed their
positions after the overthrow.[191]
Danny Aranza, deputy director of the Office of Insular Affairs at the Department
of the Interior, effectively placed these divisions in their proper context
(although his comments were actually directed toward current factions within the
Native Hawaiian community):

I
know that there are as many formulations of these concepts [i.e.,
self-government, self-determination, decolonization, and sovereignty] as
there are fish in the sea. And while people may see that as a weakness, I
think that whatever our conception is of Native Hawaiian political status, I
think one of the strengths of these movements right now is, paradoxically,
the diversity of opinion and perspective. What I mean is this: That from so
many opinions and perspectives regarding political status, all are united in
the common objective, that something must be done—something must be done
to address the political, social, economic, and historical situation of the
Kanaka Maoli.[192]

Professor
Jon Van Dyke underscored the urgency of reconciliation by warning that the
Native Hawaiian culture will be lost if Native Hawaiians are not allowed to have
a separate and distinct status.[193]

Recognizing
the unique political, cultural, and socioeconomic position of Native Hawaiians,
the State of Hawai‘i has developed several programs for their benefit.[196]
In particular, the Office of Hawaiian Affairs has been the main avenue for the
State of Hawai‘i to meet the needs of the Native Hawaiian community.

The
Office of Hawaiian Affairs (OHA) was created by an amendment to the Hawai‘i
State Constitution in 1978 to address the issues and concerns of Native
Hawaiians—a people who were, and by many accounts still are, suffering from
discriminatory practices and undesirable living conditions. The stated mission
of OHA is to “strengthen and maintain the Hawaiian people and their culture as
powerful and vital components in society.”[197] Based on the intent to
empower Native Hawaiians in their desire to develop self-sufficiency and control
their own destiny, OHA was designed to be a native-controlled entity. This meant
that its beneficiaries and trustees would be Native Hawaiians, and its nine
trustees would be elected by Native Hawaiians.[198] Today, OHA controls more
than half a billion dollars in assets from the Ceded Lands Trust and spends
millions of dollars annually on programs addressing the social, economic, and
cultural needs of Native Hawaiians.[199]

Another
important state agency addressing the needs of Native Hawaiians is the Hawaiian
Homes Commission (HHC), which was established by Congress in 1921 pursuant to
the Hawaiian Homes Commission Act.[200]
The legislation established a land trust of approximately 203,000 acres for
homesteading by Native Hawaiians and created the HHC to govern these lands.[201]
The purpose of the act, and the mission of HHC, is to place Hawaiians on the
land, thereby fostering the self-sufficiency and native culture of Hawaiians.
However, a 1991 Hawaii Advisory Committee report found that the HHC had
essentially failed to fulfill its mandate, with both state and federal
governments responsible for the agency’s inadequacy.[202]
In recent years, though, the HHC has made progress in recovering lands and
making them available for homesteading.[203]

Ray
Soon, chairman of the Hawaiian Homes Commission, believes that despite the grim
housing statistics facing Native Hawaiians, which have persisted for many
decades, the tide is changing. He noted at the 2000 forum:

I
can only speak for the Hawaiian Homes Program, but I can feel the shift in
other programs throughout the community. . . . I think you will find some of
the same optimism for the impact of our programs in the community.[204]

According
to Mr. Soon, in the past 10 years HHC has produced more homesteads than in the
first 70 years of the program. Just fewer than 1,000 homesteads are currently in
production and another 1,000 are in the design phase. HHC is experimenting with
several types of homes, including farms, ranches, multifamily dwellings, and
turn-key homes. It is also expanding into underserved markets, recently breaking
ground on its first elderly project and its first rent-to-own project.

The
potential benefits of these and other programs serving Native Hawaiians outweigh
the costs of their operational support, according to many of the panelists who
spoke at the 2000 forum. Tara Lulani Mckenzie, president and chief executive
officer of Alu Like, Inc., stated that organizations such as hers have had many
positive outcomes over the past few years. For example, a higher percentage of
Native Hawaiians are employed; more Native Hawaiians are attending college;
there is a greater appreciation of Native Hawaiian culture and traditions; and
Native Hawaiian language opportunities have increased. She told the Advisory
Committee:

Every
time a Hawaiian family is able to move into a home on Hawaiian homelands,
health prevention services help a high-risk Hawaiian, prenatal and early
childhood education assists a teenage mother to better care for her child, a
Hawaiian student graduates from college, an adult masters new skills in a
job, or one of our own overcomes substance abuse, we know that one more
Native Hawaiian individual or family has been helped and healed. That’s
one less needing assistance. Every accomplishment helps in this arena.

And
while the above-mentioned improvements and examples of effective programs
are encouraging achievements, unfortunately, Native Hawaiians still have
some of the worst statistics. . . . Alcoholism, substance abuse, domestic
violence, poor health habits, lack of motivation, sedentary lifestyle, are
still very critical problems in the Native Hawaiian communities.[205]

Ms.
Mckenzie added:

When
people have greater control over their destiny and are more self-sufficient,
they feel a sense of self-worth and pride, a sense of value in their lives.
Nothing is more powerful than this to help mend broken hearts and change
lives.[206]

Other
panelists also expressed the importance of these federal and state programs for
the benefit of Native Hawaiians. According to Mahealani Kamau‘u, executive
director of the Native Hawaiian Legal Corporation, it has only been in the past
25 years that Native Hawaiians have “had a modicum of political empowerment
and been able to exercise direct responsibility for their own affairs, that
progress has been made in so many areas.”[207]
She added that the modest progress made in combating the socioeconomic problems
of Native Hawaiians can be attributed to reforms implemented at the Department
of Hawaiian Home Lands, the creation of the Office of Hawaiian Affairs, and
federal programs designed to address housing, health, employment, and cultural
needs.[208]

Despite
all their potential benefits, many programs designed to benefit Native Hawaiians
have been criticized, by both policy experts and Native Hawaiians themselves, as
inefficient and poorly managed. Many people in need of assistance never receive
it. Several government reports, including an evaluation of the Hawaiian
Homelands Program by the Commission’s Hawaii Advisory Committee, have
documented the shortfalls of many of these programs.[209]
The federal and state governments eventually began appropriating the financial
resources necessary to carry out their trust responsibilities. However, the
resulting improvement in the conditions of Native Hawaiians was accompanied by
vocal opposition from persons challenging the lawfulness of these expenditures.
Some believe these programs should be available to all persons in need—not
just Native Hawaiians. It is precisely out of such reasoning that recent legal
challenges to Native Hawaiian entitlement programs have arisen, the most visible
of which is the Supreme Court’s decision in Rice v. Cayetano.

Reconciliation
at a Crossroads: Implications of the Rice Decision

Contrary
to what some commentators would have us believe, less for Hawaiians does not
mean more for non-Hawaiians. We all benefit from living in a just society.
Here in Hawai‘i, we cannot build a just society without justice for
Hawaiians.[210]

The path
to reconciliation, however modest, that had begun with the establishment of
federal and state programs for the benefit of Native Hawaiians and the Apology
Resolution is now coming under legal and political attack. In a split decision
on February 23, 2000, the Supreme Court ruled in Rice
v. Cayetano[211]
that Hawaiian-only voting for trustees of the state-created Office of Hawaiian
Affairs violated the 15th Amendment of the Constitution, which prohibits
race-based exclusion from voting.

Setting
the Stage for the Rice Case

To
capture the importance of the Rice v. Cayetano[212]
decision, it is necessary to briefly review Hawaii’s legislative history.
Initially, ownership of the Hawaiian islands was transferred (or ceded) to the
United States “for the benefit of the inhabitants of the Hawaiian Islands,”
under the Newlands Resolution of 1898.[213]
In 1921, the U.S. Congress enacted the Hawaiian Homes Commission Act (HHCA),
which earmarked approximately 200,000 acres of public lands, established loan
programs, and authorized homesteading leases for the benefit of “native
Hawaiians.”[214]

Subsequently,
when Hawai‘i was admitted as a state in 1959, the United States granted to the
state, in trust, whatever title it held to most of the public property of the
Hawaiian islands.[215]
Concomitantly, Hawai‘i consented to incorporate the HHCA in its constitution.[216]This transfer of land ownership to the State of Hawai‘i mandated that
the income generated from the Ceded Lands Trust would be held as a “public
trust” for the following purposes:

[1]
for the support of the public schools and other public educational
institutions, [2] for the betterment of the conditions of native Hawaiians,
as defined in the Hawaiian Homes Commission Act, 1920, as amended, [3] for
the development of farm and home ownership on as widespread a basis as
possible[,] [4] for the making of public improvements, and [5] for the
provision of lands for public use.[217]

In the
1960s and 1970s, enclaves of Native Hawaiians began to ku‘e, to resist,
displacement from their lands.[218]
Despite, or perhaps because of, the numerous evictions that took place, the
protesters were able to raise the consciousness of Hawaii’s residents with
respect to their claims for justice.[219]
A 1978 amendment to Hawaii’s constitution subsequently created the Office of
Hawaiian Affairs (OHA) to improve the well-being of Native Hawaiians and
Hawaiians.[220] OHA was also authorized
to administer 20 percent of the earnings from the public lands ceded to the
State of Hawai‘i pursuant to the 1959 Admission Act.[221]
Moreover, the nine members of OHA’s board of trustees must be elected by
voters who are legally defined as “Hawaiians.”[222]
This particular requirement ultimately became a major point of contention in the
Rice case. It was another vote,
described in the following section, that prompted the initial legal challenges.

The
Native Hawaiian Vote

In 1993,
the legislature of the State of Hawai‘i adopted Act 359 “to acknowledge and
recognize the unique status the native Hawaiian people bear to the State of
Hawaii and to the United States and to facilitate the efforts of native
Hawaiians to be governed by an indigenous sovereign nation of their own
choosing.”[223]
This act, which eventually led to the “Native Hawaiian Vote,”created a Hawaiian Sovereignty Advisory Committee designed to provide the
legislature with guidance on:

(1)
Conducting special elections related to this Act; (2) Apportioning voting
districts; (3) Establishing the eligibility of convention delegates; (4)
Conducting educational activities for Hawaiian voters, a voter registration
drive, and research activities in preparation for the convention; (5)
Establishing the size and composition of the convention delegation; and (6)
Establishing the dates for the special election.[224]

In 1994,
Act 200 amended Act 359 by establishing the Hawai‘i Sovereignty Elections
Council (HSEC).[225]
HSEC was required to “[h]old a plebiscite in 1995, to determine the will of
the indigenous Hawaiian people to restore a nation of their own choosing” and,
“[s]hould the plebiscite be approved by a majority of qualified voters,
provide for a fair and impartial process to resolve the issues relating to form,
structure, and status of a Hawaiian nation.”[226]
The legislature postponed the 1995 special election and, under Act 140, called
instead for a “Native Hawaiian Vote in 1996.”[227]
Act 140 adopted HSEC’s Hawaiian Sovereignty Election Guidelines and Procedures
for the Native Hawaiian Vote (“Election Guidelines”). Eligible voters in the Native Hawaiian Vote were required to be
Hawaiian and at least 18 years old by September 2, 1996.[228]

The
question posed in the Native Hawaiian Vote was, “Shall the Hawaiian people
elect delegates to propose a Native Hawaiian government?”[229]
More than 70 percent of eligible ballots responded ‘ae, or yes.[230]
Pursuant to statute, the HSEC dissolved as of December 31, 1996, but its work
was carried on by a nonprofit organization named Ha Hawai‘i.[231]
As Ha Hawai‘i proceeded with the plan to elect delegates, controversies
emerged with respect to (1) allegations of state involvement in what was
supposed to be an independent initiative; and (2) the fact that Act 200, § 14
provided that state laws, ordinances, regulations, and constitutional provisions
would not automatically be changed as a result of these efforts.[232]
Nevertheless, the election of 85 delegates took place on January 17, 1999; the
convention subsequently commenced on July 31, 1999; and two proposed
constitutions eventually were developed—one providing for Independence, and
the other establishing an Integrated/Nation-Within-a-Nation framework.[233]

Procedural
History of the Rice Decision

On April
25, 1996, Harold Rice filed a complaint for declaratory and injunctive relief in
the United States District Court for the District of Hawai‘i.[234]
As reflected in his second amended complaint, filed on July 17, 1996, Rice
alleged violations of his rights under the 14th and 15th Amendments of the
United States Constitution, the Voting Rights Act, the Civil Rights Acts, and
provisions of the Hawai‘i State Constitution. These purported violations
resulted from the state’s denial of his application to register for the Native
Hawaiian Vote, and for the election of trustees for the Office of Hawaiian
Affairs.

Harold
Rice is a Caucasian resident of Hawai‘i, who is a descendant of pre-annexation
inhabitants of the Kingdom of Hawaii.[235]
He is neither a “Native Hawaiian” nor a “Hawaiian,” as defined under OHA’s
voting eligibility requirements.[236]
Rice attempted to register to vote in OHA’s election for the board of
trustees. He edited the voting registration form to attest, “I desire to vote
in the OHA elections.”[237] However, his
registration was denied because he was not Hawaiian, although Rice was eligible
and in fact registered to vote in other elections administered by the state.

On July
18, 1996, another group of plaintiffs (hereafter the “Kakalia Plaintiffs,”
who, unlike Rice, were eligible for the Native Hawaiian Vote) filed a complaint
for declaratory and injunctive relief in the same court.[238] The Kakalia Plaintiffs
sought a declaratory judgment that the Native Hawaiian Vote violated their
rights under the supremacy clause, as well as the 14th and 15th Amendments of
the United States Constitution, the Admission Act of 1959, and Section 1983 of
the Civil Rights Act. On July 19, 1996, the Kakalia Plaintiffs filed a motion
for a temporary restraining order to enjoin the tabulation and announcement of
the results of the Native Hawaiian Vote.

The
district court issued an order consolidating the Rice
and Kakalia cases with respect to issues surrounding the Native Hawaiian
Vote.[239]
The court permitted the votes to be counted on August 23 and 24, 1996, but
enjoined disclosure of the results and ordered the ballots sealed pending
hearing on the plaintiffs’ motion for preliminary injunction.[240]
The motion sought to:

enjoin
the Defendants, their agents, servants, employees, and all persons acting
under, in concert with, or for them, from (1) paying any funds or monies for
the purposes of Act 359, (2) tabulating the ballots from the Native Hawaiian
Vote, (3) conducting and preparing to conduct elections of convention
delegates [in the event that the results of the Native Hawaiian Vote
supported such action], and (4) taking any other action to implement Act
359.[241]

Plaintiffs’
Motion for Preliminary Injunctive Relief

The
primary focus of the plaintiffs’ lawsuit centered on alleged infringements of
their constitutional rights under the 14th and 15th Amendments of the United
States Constitution, as well as assertions of a breach of fiduciary duty between
the State of Hawai‘i and its citizens. In reference to the 14th Amendment[242]
claim, the plaintiffs asserted that Act 359 and the Election Guidelines provided
an impermissible state benefit to some Hawai‘i citizens, on the basis of their
race.[243]
They unsuccessfully argued that the equal protection clause of the 14th
Amendment prohibited the exclusion of non-Native Hawaiian citizens from
participating in the Native Hawaiian Vote. As a result, they attempted to
persuade the district court to employ the most stringent analysis (i.e., a
strict scrutiny standard of review) of their allegations of constitutional
violations.[244]

In
contrast, the defendants relied upon precedent established in Morton
v. Mancari[245]and other cases that indicated the 14th Amendment’s equal protection
guarantees are not infringed by legislation that benefits Native Americans
because they have a political relationship with the United States.[246]
As a result, in Mancari, the Court
determined that it should review the legislation in question with a rational
basis analysis, a less stringent level of judicial review.[247]
Moreover, the district court then observed that legal precedent established in Naliielua
v. State[248]
provides that special legislation for Native Hawaiians does not necessarily
indicate the presence of a suspect racial classification that would warrant a
strict scrutiny analysis.[249]

The
district court ultimately reasoned that Congress had identified Native Hawaiians
for special consideration, due to the State of Hawaii’s fiduciary duties of
serving as the trustee for ceded lands and administering the HHCA.[250]
Thus, pursuant to the Mancari and Naliielua
cases, the court found that the less stringent rational basis test was the
appropriate level of judicial analysis for evaluating whether Act 359 and the
Election Guidelines were constitutionally sound. The rational basis test
required the State of Hawai‘i to demonstrate that these legislative provisions
were “rationally related to a legitimate state interest or to the state’s
unique obligation to the Native Hawaiians.”[251] Recognizing that the
State of Hawai‘i has a particular duty to the Native Hawaiian population, as
demonstrated by the state’s fiduciary responsibilities under the HHCA, the
district court concluded that Act 359 and the Election Guidelines satisfied a
rational basis analysis.[252]
Hence, these legislative provisions did not violate the equal protection clause
of the 14th Amendment.

Secondly,
in reference to the plaintiffs’ contention that Act 359 and the Election
Guidelines infringed upon their 15th Amendment[253]
and other constitutional protections, the court relied upon U.S. Supreme Court
rulings in Salyer Land Co. v. Tullare
Water District[254]and Ball v. James.[255]These cases maintained that the Reynolds
v. Sims’ [256]
“one-person, one-vote” principle is not violated during specialized
governmental elections that disproportionately affect a particular group of
citizens.[257] As a result, the
district court determined that the Hawai‘i legislature created the Hawai‘i
Sovereignty Elections Council with limited authority, in order to serve as an
information-gathering mechanism to measure local support for a Native Hawaiian
sovereignty movement.[258]
Hence, the district court deemed it likely that the Rice plaintiffs would be unsuccessful in prevailing on their
constitutional claims.

The
court similarly maintained that the plaintiffs could not support their argument
that the supremacy clause of the Constitution had been violated.[259] In order to prove that
state legislation infringes upon federal jurisdiction as established in the
supremacy clause, it must be demonstrated that the legislation conflicts with an
essential operation of a federal program, or that it excessively intrudes upon
an area that Congress has regarded as exclusively federal authority.[260] To determine this, the
district court considered the most applicable test for determining whether
federal authority has preempted state law; specifically, whether “the federal
law is sufficiently comprehensive to infer that Congress left no room for
supplementary state regulation.”[261]
The court relied upon the following:

The
. . . test regarding federal occupation of the field, however, requires
careful analysis because of precedent set by American Indian law. The
threshold consideration for the federal occupation alternative is whether
the subject matter at issue is within the exclusive domain of the federal
government: if it is, this clause preempts all state regulations that would
vitiate the impact or intent of the federal regulatory scheme; if it is not,
a balancing of the federal and state interests is required.[262]

The
district court concluded that since the federal government assigned primary
guardianship and trust obligations for Native Hawaiians to the State of Hawai‘i
(through the HHCA and the Admission Act), proper discharge of the state’s
trust obligations may include seeking guidance from the Native Hawaiian people
by determining their views in an election setting.[263]

The
plaintiffs asserted that the State of Hawai‘i breached its fiduciary duty to
Hawaiian citizens by using Act 359 and the Election Guidelines as a means of
removing Hawaii’s trust property from the rightful ownership of all citizens
of Hawai‘i and transferring it solely to Native Hawaiians.[264]
Again, the district court found that the plaintiffs would not prevail on the
merits. A plain reading of Act 359 contradicted the plaintiffs’ argument:

Act
359 . . . makes no reference to a transfer of land—trust or otherwise—to
a sovereign Hawaiian government. Nor does it provide authorization or a
mechanism for any such transfer. Furthermore, the court [found] that HSEC
Defendants may have a legitimate qualified immunity argument because their
actions do not appear to violate “clearly established law.”[265]

Finally,
the Rice plaintiffs were unable to
show the likelihood of irreparable injury if the court did not act. Plaintiffs
asserted that announcing the outcome of the Native Hawaiian Vote would adversely
affect their ability to petition the federal government. The district court
found there was no evidence that revealing the vote’s results would inhibit
the plaintiffs from using any previously established means of governmental
redress.[266]

Motions
for Partial Summary Judgment

In May
1997, the United States District Court for the District of Hawai‘i considered
motions for summary judgment from each of the primary parties in the Rice
case—the plaintiff, Harold Rice, and the defendant, governor of Hawai‘i,
Benjamin J. Cayetano. The court denied plaintiff’s motion for partial summary
judgment and granted defendant’s motion for partial summary judgment.

In order
to prevail on such a motion, the party seeking summary judgment must demonstrate
that he or she is entitled to judgment as a matter of law, even if all issues of
fact are resolved in favor of the other party.[267] Although rejected by the
court on his prior motion for preliminary injunction, Rice reiterated that the Mancari
case did not control whether Native Hawaiians are a federally recognized Native
American tribe. Rice claimed that Article XII, Section 5 of the Hawai‘i
Constitution[268]
and Section 13D of the Hawai‘i Revised Statutes[269]
violated the 14th and 15th Amendments by permitting the election of OHA trustees
and excluding non-Hawaiians from the voting process. In opposition, the
defendant recognized that while Native Hawaiians are not a federally recognized
Indian tribe or quasi-sovereign tribal entity, the rational basis test is still
the appropriate standard for reviewing this matter, since Native Hawaiians are a
political group.[270]

Although
Native Hawaiians have not been formally recognized as an Indian tribe, the
district court found the absence of formal recognition did not significantly
contribute to its analysis of previous precedent.[271]
However, the court considered the existence of the trust relationship between
the State of Hawai‘i and Native Hawaiians, as evidenced by the HHCA, as a
central reason why Native Hawaiians were not originally included in the federal
Native American acknowledgment process.[272]
The district court then determined that the unique guardian-ward relationship
between the State of Hawai‘i and Native Hawaiians was a more essential element
in its analysis than formal federally recognized status. Accordingly, the court
concluded that Mancari’s holding
that Native Americans constitute a political group rather than a racial
classification is also applicable to Native Hawaiians.[273]

Rice
maintained that the trust relationship established by the Admission Act was not
meant exclusively for Native Hawaiians. He also indicated that the State of
Hawai‘i is attempting to constructively establish an Indian tribe with
self-governing power by permitting OHA’s board of trustees to be elected only
by Native Hawaiians.[274]
The state responded that (1) Hawaiians share a similar status with aboriginal
people and Native Americans, which satisfies Mancari’s equal protection requirements; (2) the state’s trust
obligation is furthered when Native Hawaiians participate in OHA’s election
decisions, which reduces the negative impact on non-Hawaiians who would have to
administer matters that affect Native Hawaiians; and (3) the trust partly
benefits Hawaiians.[275]
In response, the district court concluded the establishment of OHA does not
create a “tribe” of Native Hawaiians, nor does it provide them with
self-governing power.[276]

Lastly,
the court examined the parties’ “one-person, one-vote” arguments. The
defendant emphasized that the OHA was created for a particular purpose and given
restricted governmental authority.[277]
OHA’s elections, therefore, satisfy the Salyer
“special interest” election exception.[278]
In contrast, the plaintiff argued (inaccurately) that OHA has more extensive
authority, since it provides social and governmental services to a specific
group based on race (i.e., Native Hawaiians).[279]
Nevertheless, the district court ultimately held that in spite of its delineated
statutory powers, OHA cannot be viewed as a general governmental authority,
since it does not impose taxes or control the issuance of educational, health,
and welfare services to Hawaiian and Native Hawaiian citizens.[280]
Therefore, the Reynolds v. Sims “one-person,
one-vote” restriction was not violated.[281]
Accordingly, the district court opined:

The
court concludes that the method of electing OHA Trustees as presently
provided by state law meets constitutional standards and therefore the court
denies Plaintiff’s Motion for Partial Summary Judgment and grants
Defendant’s Motion for Partial Summary Judgment.[282]

Appeal
to the U.S. Court of Appeals, Ninth Circuit

In June
1998, the United States Court of Appeals for the Ninth Circuit heard arguments
on appeal from the lower court’s decision. The primary issue was whether the
State of Hawai‘i could restrict voting eligibility in special trustee
elections to Native Hawaiians, the intended trust beneficiaries.[283]
Rice reiterated his earlier claims that OHA’s voting eligibility requirements
for board of trustee elections violated his constitutional rights under the 14th
and 15th Amendments, because they were allegedly race based and therefore could
not pass strict scrutiny analysis.[284]
Moreover, he indicated that his 15th Amendment rights had been infringed upon
because OHA’s voting eligibility restriction created a requirement that the
right to vote is based upon race. Furthermore, Rice tried to argue that an
election limited to Native Hawaiians offends “the anti-nobility prohibitions
of the United States Constitution because it establishes immutable classes among
citizens, giving some greater entitlement to political power than others, based
solely on birth and ancestry.”[285]
The defendant countered Rice’s claims by indicating that the definition of
Native Hawaiians or Hawaiians is the essential issue. Limiting the right to vote
for OHA’s board of trustees to Native Hawaiians does not constitute a racial
classification. As a result, the State of Hawai‘i contented that OHA’s
voting requirements satisfied precedent established in Mancari for a rational basis review.[286]

The
Ninth Circuit observed that OHA’s voting restriction is legal or political,
not primarily racial, since the State of Hawai‘i rationally surmised that
Hawaiians are the group to which OHA trustees owe a duty of loyalty.[287] The court also noted
that the voting restriction only applies during special elections, while all
qualified citizens are eligible to vote in general elections.[288]
Although the Ninth Circuit acknowledged that Native Hawaiians are not
identically situated with federally recognized Native American peoples, it
reasoned that the State of Hawaii’s particular trust relationship with Native
Hawaiians provided the authority to validate OHA’s voting restriction.[289]
Moreover, the court viewed the voting qualification as an indication of OHA’s
sole fiduciary duty to Native Hawaiians, instead of a means of preventing
non-Hawaiians from participating in the overall election process.[290]

In
reference to the plaintiff’s 14th Amendment argument, the Ninth Circuit agreed
the statutory Election Guidelines created a racial classification; however, the
court concluded that the voting qualification should not be viewed as being “racial”
in context.[291]
The court explained that OHA’s voting guidelines are comparable to Salyer’s
restriction of voting to landowners, instead of the type of racial preference in
Adarand.[292]
In the alternative, the Ninth Circuit subjected the Election Guidelines to a
strict scrutiny analysis:

[E]ven
if the voting restriction must be subjected to strict judicial scrutiny
because the classification is based explicitly on race, it survives because
the restriction is rooted in the special trust relationship between Hawai‘i
and descendants of aboriginal peoples who subsisted in the Islands in 1778
and still live there—which is not challenged in this appeal. Thus, the
scheme for electing trustees ultimately responds to the state’s compelling
responsibility to honor the trust, and the restriction on voter eligibility
is precisely tailored to the perceived value that a board chosen from among
those who are interested parties would be the best way to insure proper
management and adherence to the needed fiduciary principles.[293]

As a
result, the Ninth Circuit affirmed the district court’s ruling as to the
constitutionality of the voting qualification. The Ninth Circuit reasoned that
there was no race-neutral mechanism for limiting the election of OHA trustees to
those individuals who had a legal interest in the management of their trust
assets, “except to do so according to the statutory definition by blood
quantum which makes the beneficiaries the same as the voters.”[294]

Writ
of Certiorari to the U.S. Supreme Court

After
the Ninth Circuit affirmed the district court’s decision, Rice appealed to the
U.S. Supreme Court.[295]
The Supreme Court, in a split decision and on narrow grounds, reversed the Ninth
Circuit. The Court held that the statute permitting only Hawaiians to vote for
trustees of OHA (technically, a state agency) created a race-based
classification in violation of the 15th Amendment of the Constitution.[296]

Majority
Opinion

The
Supreme Court arrived at its conclusion by ignoring critical issues raised by
the State of Hawai‘i and several amici curiae in this case.[297] It is significant to
note that the majority decision explicitly refused to decide the issue of
whether Native Hawaiians were analogous to Indian tribes for the purposes of
constitutional analysis. To do so, the Court reasoned:

it
would be necessary to conclude that Congress, in reciting the purposes for
the transfer of lands to the State—and in other enactments such as the
Hawaiian Homes Commission Act and the Joint Resolution of 1993—has
determined that native Hawaiians have a status like that of Indians in
organized tribes, and that it may, and has, delegated to the State a broad
authority to preserve that status. These propositions would raise questions
of considerable moment and difficulty. It is a matter of some dispute, for
instance, whether Congress may treat the native Hawaiians as it does the
Indian tribes. Compare Van Dyke, The
Political Status of the Hawaiian People, 17
Yale L. & Pol’y Rev. 95 (1998), with
Benjamin, Equal Protection and the
Special Relationship: The Case of Native Hawaiians, 106 Yale
L. J. 537 (1996). We can stay far off that difficult terrain,
however.[298]

Having
avoided this fundamental (and arguably determinative) issue, the Court
nevertheless distinguishes Morton v.
Mancari—a decision recognizing the existence of a political relationship
between the government and indigenous groups—as being restricted to the Bureau
of Indian Affairs.[299]
The fact that more than 150 congressional enactments recognize Native Hawaiians
as Native Americans belies this asserted distinction.[300]
These laws extend to Native Hawaiians many of “the same rights and privileges
accorded to American Indian, Alaska Native, Eskimo, and Aleut communities.”[301]

In its
introduction, the Court recites selective details about the history of
oppression experienced by Native Hawaiians but then ignores their consequences.[302]
For example, the majority opinion cites U.S. military participation in the 1893
overthrow of the Hawaiian monarchy and the unlawful taking of 1,800,000 acres of
Hawaiian land. However, the Court ultimately fails to recognize the importance
of this history in the development of a trust relationship between the U.S.
government and Native Hawaiians and their desire for self-governance. Although
it is true that the obligations attendant to the special relationship between
the United States and its indigenous people are ordinarily carried out by the
federal government, in this case, they were delegated first to the territory and
subsequently to the newly formed state of Hawai‘i, upon its admission to the
Union.[303]
Had the Court shown any understanding of the last two centuries of Native
Hawaiian history, including dominion and control by European and U.S.
settlers/governments, the Court could not have set aside the fundamental
question of whether Native Hawaiians are analogous to Indian tribes.

Indeed,
the Supreme Court recognized that the federal government had delegated its
special obligation to indigenous Hawaiians to the State of Hawai‘i and further
recognized this unique relationship in the creation of the Office of Hawaiian
Affairs. OHA was created, pursuant to a 1978 amendment to Hawaii’s
Constitution, in order to establish a “public trust entity for the benefit of
the people of Hawaiian ancestry.”[304]
The Court acknowledges that “OHA has a unique position under state law,”
that it operates “independent from the executive branch and all other branches
of government although it will assume the status of a state agency,” and
further “assume[s] the validity of the underlying administrative structure and
trusts. . . .”[305] Yet, the Court
circumvents the core issues with a conclusory observation that OHA remains an
arm of the state and, therefore, its elections are affairs of the state. The
Court refuses to make the connection that the OHA election for trustees is a
mechanism to perform the trust obligations delegated to the state by the federal
government and, therefore, that OHA’s voting procedures should not be viewed
as race-based discrimination.[306]
Finally, the Court did not decide whether Hawaii’s voting procedures to elect
trustees of the OHA violated the 14th Amendment.

Concurring
Opinion

Justice
Breyer’s concurring opinion (joined by Justice Souter) first acknowledged that
the majority opinion did not directly deny the analogy between Native Hawaiians
and Indian tribes.[307]
Justice Breyer then observed that “Native Hawaiians, considered as a group,
may be analogous to tribes of other Native Americans.”[308]
However, Justices Breyer and Souter ultimately joined in the result reached by
the majority because of their concern that the OHA electorate included 130,000
“additional ‘Hawaiians’ ” of less than 50 percent Native Hawaiian blood,
a definition they felt to be too broad compared with any other Native American
tribal definition that they could find.[309]

This
focus on identifying an appropriate blood quantum demonstrates the preoccupation
with race in America.[310]
However, Justices Breyer and Souter subsequently recognize that being “Indian”
in the United States is, properly, a matter of cultural identity:

The
Alaska Native Claims Settlement Act . . . defines a “Native” as “a
person of one-fourth degree or more Alaska Indian” or one “who is
regarded as an Alaska Native by the Native village or Native group of which
he claims to be a member and whose father or mother is . . . regarded as
Native by any village or group” (a classification perhaps more likely
to reflect real group membership than any blood quantum requirement). 43
U.S.C. § 1602(b).[311]

Although
Justice Breyer stated that “there is no ‘trust’ for native Hawaiians here,”
he did not say that no trust exists; instead, OHA and its electorate are not
congruent with any trust that may have been established.[312]
The paragraphs following this statement, which emphasize that OHA receives funds
from several sources and that OHA’s membership is not limited by any defined
blood quantum, clarify the meaning and intent of this statement.[313]
Justice Breyer also notes that the trust established under the Admission Act
benefits both the general public and Native Hawaiians, but this fact does not
serve to diminish the rights of Native Hawaiians as beneficiaries of that trust.[314] Finally, Justice Breyer
concedes that Hawaii’s definitions of “Native Hawaiian” do not inherently
violate the Constitution, just that this particular application is
unconstitutional.[315]

Justice
Stevens’ dissent (joined by Justice Ginsburg) argued that the majority’s
opinion fails to relate the compelling history of the State of Hawai‘i “to
rectify the wrongs of the past, and to put into being the mandate of our federal
government—the betterment of the conditions of Native Hawaiians.”[317] Justices Stevens and
Ginsburg would have upheld the state’s voting qualification for the election
of OHA trustees, by initially stressing that the federal government must be
allotted great discretion in meeting its obligation to aboriginal citizens who
reside in lands that are now U.S. territories.[318]
In addition, the dissent found there was no “invidious discrimination” in
this case that would prohibit efforts to preserve the Native Hawaiian culture
and compensate Native Hawaiians for historic wrongdoing.[319]

Part II
of Justice Stevens’ dissent discussed how the U.S. Supreme Court has
acknowledged Congress’ plenary power over Native American concerns, as well as
the fiduciary nature of the relationship between the federal government and
formerly sovereign citizens.[320]
Moreover, the dissent pointed out that “[a]mong the many and varied laws
passed by Congress in carrying out its duty to indigenous peoples, more than 150
today expressly include Native Hawaiians as part of the class of Native
Americans benefited.”[321] The dissent noted the
majority’s failure to acknowledge the similarities between the Native Hawaiian
situation and that of Native Americans. Specifically,

[t]he
descendants of the native Hawaiians share with the descendants of the Native
Americans on the mainland or in the Aleutian Islands, not only a history of
subjugation at the hands of colonial forces, but also a purposefully created
and specialized “guardian-ward” relationship with the Government of the
United States. It follows that legislation targeting the native Hawaiians
must be evaluated according to the same understanding of equal protection
that this Court has long applied to the Indians on the continental United
States: that “special treatment . . . be tied rationally to the
fulfillment of Congress’ unique obligation” toward the native peoples.[322]

Referencing
the majority’s view that tribal membership was essential to the holding in Mancari,
the dissent explained that the Bureau of Indian Affairs’ employment preference
not only included nontribal member Native Americans, but also mandated that
Native Americans possess a quantifiable and specific lineage of Indian blood.[323]

The
dissent dismissed the majority’s view that the OHA elections, which were
approved by the entire state of Hawai‘i, are “the affair of the state,”
instead of the actions of a “tribe.”[324]
The dissent agreed with the state’s position that OHA’s trustee elections
are a mechanism to carry out the federal government’s trust obligations.[325]
For example, the dissent found Washington
v. Confederated Bands and Tribes of Yakima Nation to be controlling
authority on this particular issue. The dissent noted that in Yakima, the Court upheld a 14th Amendment challenge to a Washington
State law that provided jurisdictional responsibility for Native American tribes
in the state.[326]
Although federal entities are primarily responsible for the governmental
relationship with Native American tribes, the Yakima court concluded that Washington State law was “in response
to a federal measure intended to achieve the result accomplished by the
challenged state law, [and therefore] the state law itself need only rationally
further the purpose identified by the State.”[327]

In part
III of Justice Stevens’ dissenting opinion, the analysis focused on the
majority’s view that OHA’s voting qualification violated the plaintiff’s
15th Amendment rights. Because OHA’s trustee elections included particular
ancestry and current residency as voting eligibility requirements, the dissent
maintained that “the ability to vote is a function of the lineal descent of a
modern-day resident of Hawai‘i, not the blood-based characteristics of that
resident, or of the blood-based proximity of that resident to the ‘peoples’
from whom that descendant arises.”[328]
The dissent indicated that the framers of the Constitution deemed there was no
15th Amendment prohibition against the specific use of ancestry in protecting
the right to vote. Although Justice Stevens agreed with the majority that
ancestry can be a proxy for race or the presence of invidious racial
discrimination, he emphasized that it is not always the case. Instead, the
dissent reasoned that the cases relied upon by the majority (for the proposition
that ancestry can be a proxy for race) “have no application to a system
designed to empower politically the remaining members of a class of people once
sovereign, indigenous people.”[329]

Additionally,
the dissent found no racially invidious intent relating to the State of Hawaii’s
decision to expand the pool of eligible voters in OHA’s board of trustee
elections to “any descendant” of a 1778 resident of the Hawaiian islands.[330]
Justice Stevens determined this decision had the effect of ensuring there was a
sufficient number of eligible voters with similar ancestry and culture. “[T]he
political and cultural interests served are—unlike racial survival—shared by
both Native Hawaiians and Hawaiians.”[331]
Moreover, the dissent indicated that OHA’s voting qualifications were approved
by a democratic vote of a multiracial majority of all state citizens, which
included non-Native Hawaiians who are not eligible to participate in OHA’s
trustee elections.[332]
In contrast to the majority’s view, the dissent found no “demeaning”
consequence of a citizen being ineligible to vote in OHA’s board of trustee
elections. The actual reason for the voting requirements stems from other
intentions. Specifically,

families
with “any” ancestor who lived in Hawaii in 1778, and whose ancestors
thereafter continued to live in Hawaii, have a claim to compensation and
self-determination that others do not. For the multi-racial majority of the
citizens of the State of Hawaii to recognize that deep reality is not to
demean their own interests but to honor those of others.[333]

Part IV
of Justice Stevens’ dissent observed that 15th Amendment case law, which was
predicated on perpetuating discriminatory voting schemes in the Old South, is
not analogous to the goal of achieving self-determination for indigenous
Hawaiian people, in light of their particular history.[334] He concurred with Judge
Rymer of the Ninth Circuit, who viewed the voting qualification, not as a means
to ostracize those citizens who may be interested in OHA’s concerns, but as a
reflection of the trustees’ sole fiduciary duty to Native Hawaiians.[335]

Dissenting
Opinion—Justice Ginsburg

Justice
Ginsburg’s dissent concurred with Justice Stevens’ reliance upon established
federal authority over Native Americans or, more particularly, “Congress’
prerogative to enter into special trust relationships with indigenous peoples.”[336]
Justice Ginsburg then added that both the majority and Justice Stevens
recognized that “federal trust responsibility . . . has been delegated by
Congress to the State of Hawai‘i.”[337]
She concludes that “[b]oth the Office of Hawaiian Affairs and the voting
scheme here at issue are ‘tied rationally to the fulfillment’ of that
obligation.”[338]

Vacated
Court of Appeals Decision

As a
result of the U.S. Supreme Court’s opinion, the Ninth Circuit vacated its 1998
Rice decision, reversed the district
court’s opinion, and referred the case to the trial court for further action
consistent with the Supreme Court’s opinion.[339]
The district court entered judgment, consistent with a stipulation by the
parties, simply declaring that the plaintiff’s 15th Amendment rights were
violated.[340] However, Judge Ezra
characterized the Supreme Court’s opinion in Rice as follows:

This
was by no means a unanimous court but rather a fractured one in reaching its
decision. Of course, we must all respect the final result and obey the
holding of the Supreme Court. . . . However, it must be remembered that the
Supreme Court is a dynamic institution, a body who in history has many times
and in the most important context reviewed and reconsidered its decisions.
The Supreme Court once ruled in Plessy versus Ferguson that “separate but
equal” met constitutional standards in education. The error of that
decision was corrected by—and in subsequent years by unanimous decision of
Brown versus Board of Education. . . . Today we do not know, and we cannot
know, what the ultimate significance of the decision in this case will be.
The holding may stand or at some future time the Supreme Court may
reconsider, reverse itself, or severely limit the impact of its decision.
But this much we do know. The decision was a narrow one, restricted to the
single issue of state-sponsored Hawaiian-only elections. The suggested
precedential value of the United States Supreme Court’s decision in other
contexts is problematic and speculative at best.[341]

Public
Comment on the Supreme
Court’s Decision

From the
moment the Rice v. Cayetano decision
was rendered, there was vocal public reaction in Hawai‘i. The decision fueled
the already divisive debate surrounding entitlement programs, self-governance,
and identity. Supporters of the decision praised the Court for its adherence to
what they saw as a constitutionally required rejection of race-based privilege,
while opponents, including most Native Hawaiians, were confused by what they saw
as one more setback in their struggle for self-governance. The frustration and
anger resonating in Native Hawaiian communities as a result of the Rice
ruling prompted the Advisory Committee’s September 2000 forum.

Fear
for the Future: Opposition to the Rice Decision

[T]he
decision in Rice v. Cayetano is just a continuation of the conspiracy to
wipe out the status of a proud people and a peaceful, neutral nation. I was
shocked to read the decisions from the U.S. Supreme Court. I found them so
lacking in historical research and intelligent arguments.[342]

As would
be expected, given the controversy surrounding the Rice
decision, members of the public who spoke before the Hawaii Advisory Committee
gave passionate accounts of their perceptions. Perhaps the most commonly voiced
concern about the Rice decision was
that, even though it had only been recently rendered, its effects were already
being felt by the Native Hawaiian community. For example, David Helela, a Native
Hawaiian, testified that Rice has
already had a negative effect on the public’s perceptions of Native Hawaiian
programs:

Since
the Rice decision in February,
there’s been a marked increase in public expressions against programs and services that benefit Native
Hawaiians only. We’re seeing on an almost daily basis in our newspapers
letters to the editor that argue for ending the so-called race-based
programs [and] that there was no reason Native Hawaiians should be given
preferential treatment over other Americans.[343]

Representatives
from Hawaiian organizations and programs echoed this observation, pointing out
effects the fallout from the Rice decision could have. According to Tara
Lulani Mckenzie, president and chief executive officer of Alu Like, Inc., the
largest private nonprofit organization providing services and programs to Native
Hawaiians, organizations like Alu Like could not provide their programs and
services if it were not for federal support.[344]
She stated that “Native Hawaiians are suffering from serious socioeconomic
problems. They have overwhelming needs and few remedies.”[345]
In her opinion, the Rice decision set a precedent for future challenges
to Native Hawaiian programs: “The Rice v. Cayetano decision set in
motion a tragic situation which could have very serious implications for Native
Hawaiians.”[346]
Retired federal magistrate Edward King agreed that the Rice decision has
stripped away a “powerful tool for addressing the wrongs of the past and the
consequent needs of the future.”[347]

Ray
Soon, chairman of the Hawaiian Homes Commission (HHC), also expressed his fears
about the implications of the Rice decision:

We
fear for the people who are about to get on the land because they’re not
going to get that promise delivered. And we fear for the 30,000 Hawaiians
who are on the land right now because their future is in doubt. But most of
all, and I believe this is genuine, we fear mostly for the loss of the
indigenous culture in the islands.[348]

Mr. Soon
believes HHC was “right on the cusp” of securing much-needed housing
benefits, particularly with the Native Hawaiian Housing Self-Determination Act
pending before Congress.[349]
However, given the current judicial and legal climate, all the progress made by
HHC may be lost. Mr. Soon stated:

The
future looked bright until Rice v. Cayetano came along. That case casts a shadow of doubt over
all Hawaiian programs, certainly over Hawaiian Homes. It would be painfully
ironic if, just now, when Hawaiian Homes was beginning, and certainly just
the beginning, of delivering on the promise of Congress back in 1920, we
were declared unconstitutional because of the work of others before the
Supreme Court.[350]

One
panel of the Advisory Committee’s 2000 forum dealt specifically with the legal
implications of the Rice decision. Mahealani Kamau‘u, executive director of the Native
Hawaiian Legal Corporation, stated:

In
rendering its opinion, the High Court chose to apply the law as though
entirely separate from the cultural, political, and economic context within
which OHA’s voting process was created. That context largely is the result
of America’s misdeeds and the Hawai‘i electorate’s desire to make
amends.

The
Court appears to have been influenced by the increasingly dominant discourse
of neo-conservatism, which has emphasized the need for strictly color-blind
policies, calling for the repeal of special treatment such as affirmative
action and other race-remedial policies.

Under
this doctrine, implicit assumptions regarding race include beliefs that any
race consciousness is discrimination, that race is biological and thus a
concept devoid of historical, cultural, or social content, and that a group
is either racial or it is not. And if it is racial, it cannot be
characterized as political. This approach allows America to ignore its
historical oppression of Native Hawaiians when meting out justice in its
courts of law.[351]

According
to Ms. Kamau‘u, the Supreme Court has begun the process of eliminating the
programs available to Native Hawaiians only in recent times, in particular the
“exclusive means for expressing their collective and political will”—namely,
the Office of Hawaiian Affairs. In her opinion, this negates the attempts to
remedy past wrongs of the United States.[352]

One of
the more difficult questions raised by the Rice
discussion is whether the inherent right of self-determination should be viewed
as a fundamental civil right. Bill Hoshijo, executive director of the Hawai‘i
Civil Rights Commission, stated that it is necessary to recognize that:

Hawaiian
rights issues are not civil rights issues within the framework that was
applied by the United States Supreme Court in Rice.
The issues involved are not issues of individual rights and equality under
the law, but those of the inherent right of indigenous peoples to
self-determination.[353]

The
challenge lies in reconciling the concepts of civil rights and Hawaiian
self-determination. According to Mr. Hoshijo, the Rice
decision is part of a disturbing trend in which “hard-won civil rights
protections are being subjected to constitutional attacks.”[354]

The
cause for alarm is justified. However, the Rice
decision, by itself, may not be fatal to all Hawaiian programs.
Panelist Robert Klein, former justice of the Hawai‘i Supreme Court, reminded
the assembly that the interpretation of Rice
should be limited to the facts of the case and the law in question: voting
rights under the 15th Amendment.[355]

Senator
Daniel Akaka, in a written statement presented to the Hawaii Advisory Committee,
observed that the Rice decision has no impact on federal programs addressing the
conditions of Native Hawaiians. The Court merely ruled that OHA is a state
agency and, as such, could not limit the election of its board of trustees to
Native Hawaiians. Further, the ruling did not address the political relationship
between Native Hawaiians and the United States, nor did it invalidate the
federal programs that have been established to address the conditions of Native
Hawaiians or declare OHA unconstitutional.[356]
The decision has, however, had an impact on the Native Hawaiian community and
has made it clear that the relationship between Native Hawaiians and the United
States is an important matter.[357]
Senator Akaka added:

The Rice
case does not directly impact the federal programs. Instead, the case has
caused Native Hawaiians to come together to begin to resolve longstanding
issues. Through addressing and resolving these matters, we will come
together as a community and move forward together to provide a better future
for the children of Hawai‘i.[358]

Jon Van
Dyke, professor of law, University of Hawai‘i at Manoa, agreed that the Rice
decision is limited to the 15th Amendment, but warned that there are still
dangers in the opinion because it focuses on what is and what is not racial
discrimination, and it characterizes preferences for Native Hawaiians as racial
discrimination.[359]
He told the Committee:

And
so the mystery always is . . . why . . . cannot the Native Hawaiians . . .
have the same rights to elect their own leaders that other native people
have? And Justice Kennedy’s answer was that it’s because the Office of
Hawaiian Affairs was not a quasi-sovereign entity, and that that was the
defining difference between the Office of Hawaiian Affairs on the [other] .
. . hand and the Navajo Nation or the Cherokee Nation or any other Indian
nation.[360]

This
comparison between Native Hawaiians and American Indians or other groups
indigenous to North America was another recurring theme in the Advisory
Committee’s forum. It is interesting to note that there is a conflicting
sentiment here: on one hand, Hawaiians reject the comparison to American
Indians, stating that they are not a tribe; on the other hand, they compare
themselves to American Indians to justify their right to self-determination. (Of
course, there are Native Americans recognized by the federal government who were
not actually members of “tribes” either.) However, some have argued that the
Supreme Court rejected this comparison in its Rice
decision, stating that neither the Constitution nor Congress has made it clear
that Native Hawaiians are included in the references to indigenous people.[361]
The Advisory Committee has reviewed the decision and concludes that the Court
expressly left this question open.

One of
the main criticisms of the Supreme Court’s majority opinion in Rice is
that it failed to address the argument that Hawaiians have a standing similar to
Native Americans, who have a political relationship with the federal government.
As Mr. Hoshijo pointed out, the distinction between racial and political
classifications is crucial.[362]
The dissenting opinion of Justice Stevens, on the other hand, has been praised
for its acknowledgment of Hawaiian history and the recognition of its importance
to the current needs of Native Hawaiians. Justice Stevens noted the government’s
obligation to native peoples and rejected the distinction between Native
Hawaiians and tribal Indians.

Despite
the authority of the Supreme Court and the finality of its rulings, some believe
that the Supreme Court decision will itself come under scrutiny. Mr. Hoshijo
stated, “Yes, it’s the law, but we can’t abdicate our responsibility to
critique the Court’s analysis, to hold it up to the camera of public discourse
and to condemn the unjust result.” He pointed out that there have been many
Supreme Court decisions in history that have come to be regarded later as civil
rights disasters, and he is confident that the Rice
decision will “similarly be condemned in historical hindsight.”[363]

Perceived
Victory: Support for the Rice Decision

Although
the majority of the forum’s participants voiced opposition to the Supreme
Court’s decision in Ricev. Cayetano, there
were a few situated on the other end of the political and legal spectrum who
expressed support for the ruling. Dr. Kenneth Conklin fervently opposes what he
refers to as race-based entitlement programs, stating that there are other
residents of Hawai‘i who are in poverty, including Filipino, Japanese,
Chinese, and Caucasian Americans who should also benefit from the available
programs.[364]
He further testified:

Some
have a topsy-turvy concept of civil rights saying that it violates the civil
rights of Hawaiians when they cannot get preferential treatment, land,
money, and political power based solely on race. I reject that upside-down
logic. To grant such logic would grossly violate the civil rights of all the
people of Hawai‘i. . . .

So
it is clear what the long-term effects of the Rice
decision will be upon racial entitlement programs. They are unconstitutional
and will be abolished. This is not a bad thing. This is a good thing. It is
good to reaffirm that all citizens of a democracy are equal under the law.
It is good to reaffirm that government cannot discriminate either for or
against people on account of race. It’s called protecting civil rights.[365]

When
asked whether the fact that the Rice decision was not unanimous was indicative that, even within the
confines of the Supreme Court, there was some sentiment that the decision was
wrong, Dr. Conklin responded that he regrets that it was only a 7 to 2 decision.
He pointed out that throughout history there have been many significant
decisions that were not unanimous, even 5 to 4, but they became, nonetheless,
the law of the land.[366]

Another
individual who spoke in favor of the Rice
decision was William Burgess, a retired attorney and Hawai‘i resident. He
stated:

Under
the U.S. Constitution, every individual citizen, every one of us, is
entitled to equal protection of the laws without regard to race or ancestry.
When the government allocates benefits based on race or ancestry, that
discriminates against the rest of the citizens who are denied the right to
share in those benefits.

A
great civil rights principle of American democracy is that government shall
not engage in racial discrimination. That principle has been combined in
Hawai‘i with the aloha spirit and it’s been embraced by Hawai‘i to
create a real-life working model for the whole world of how a diverse people
can live together in relative harmony. The Rice
decision doesn’t diminish that principle. It enhances it.[367]

Mr.
Burgess said that, rather than trying to circumvent the Rice
decision, Hawaiians should use it to figure out ways to eliminate government
discrimination in the allocation of benefits to one group (Native Hawaiians)
over others. He contends that state funds and federal programs supporting Native
Hawaiians are allocated based solely on the race or ancestry of the recipient,
including some individuals who “have no need for . . . help with their health
needs or education needs or housing needs.”[368]
He further contends that Hawaiians are not a distinct people in the way American
Indians are because they do not live in separate tribal communities but rather
are integrated with other peoples of the state by choice.

Opening
the Door to Legal Challenges

The
effect of the Supreme Court’s decision in Rice
v. Cayetano immediately provided a legal avenue for those who contend that
Native Hawaiians have unjustly been the recipients of race-based preferences in
the state of Hawai‘i. In July 2000, several Hawai‘i residents filed a
complaint for a declaratory judgment and an injunction against the state in the
United States District Court for the District of Hawai‘i.[369]
The plaintiffs in Arakaki v. State of
Hawaii alleged that despite recent precedent in Rice, the Office of Hawaiian Affairs infringed upon their 14th and
15th Amendment rights by refusing to issue nomination forms to one of the plaintiffs, Kenneth Conklin, for election to OHA’s
board of trustees, solely because Mr. Conklin is not “Hawaiian” (as defined
by Hawaii’s statutory provisions).[370]
In addition, the plaintiffs contended that OHA’s existence and the state laws
under which it operates are invalid.[371]

In a
subsequent motion for summary judgment before the district court in September
2000, Judge Helen Gillmor ruled that pursuant to the Supreme Court’s ruling in
Rice, it can be assumed that the
Constitution also prohibits racial discrimination in the selection of who may
run for public office.[372]
Specifically, it is unconstitutional for the Office of Hawaiian Affairs to limit
its board of trustees to Native Hawaiians. In rendering its summary judgment in
favor of the plaintiffs, the court stated:

Neither
Defendants nor OHA have explained why it is necessary that only Hawaiians
serve as trustees. If the Court were to reach the question and find that the
State co-opted a trust obligation to Hawaiians or that the State has a
compelling interest in remedying past wrongs to Hawaiians, this Court does
not accept the proposition that non-Hawaiians are unable to adequately serve
that obligation as trustees.[373]

The
district court subsequently ordered the state to permit otherwise qualified
non-Native Hawaiians to run for office and, if elected, serve as trustees for
OHA.[374]
The Arakaki decision is currently on appeal before the United States
Court of Appeals for the Ninth Circuit.[375]

As with Rice,
the Arakaki decision evoked strong emotion among Native Hawaiians and
their supporters. Before the Hawaii Advisory Committee, Judge Klein described
the possible effect of Arakaki:

[Arakaki]
is a slam-dunk case from the standpoint of—if you allow the courts to
utilize the traditional constitutional paradigm in determining whether
statutes, which discriminate on their face, can only be upheld if there is a
clear compelling state interest and another means of exonerating the statute
in a narrowly tailored way cannot be found. If you utilize that paradigm, as
was done in Ricev.
Cayetano, to measure practically any . . . of these programs under
typical constitutional analysis, they’re all in jeopardy, because two of
the major determinations made in Ricev. Cayetano that are harmful in
legal analysis are, number one, the discrimination was based on race; number
two, that OHA was a state office. Those two principal foundations to the Ricev. Cayetano decision color any
future legal cases challenging any state/federal programs, be they
statutory, be they constitutional rights in nature, or even Hawai‘i
Supreme Court decisions favoring the rights of Hawaiians, all can be
challenged using the traditional paradigm.[376]

Ms.
Kamau‘u expressed her fear that the federal district court has “explicitly
expanded its constitutional reach to lay bare and cement the legal foundation
upon which all Native Hawaiian preference programs may now be challenged and
scrutinized under a stricter standard of legal review.”[377]
She added:

The
government must now show that a law which allows the native preference is
narrowly tailored to achieving a compelling state interest. Native Hawaiian
programs would have difficulty meeting this strict scrutiny test in the best
of times, but the High Court’s recent inclination to turn a blind eye to
the larger context—the historic, cultural, social, and political
oppression suffered by Native Hawaiians for over a century at the hands of
America—portends disaster.[378]

These
fears of repercussions from the Rice
and Arakaki decisions appear to have
been warranted. In October 2000, two additional lawsuits were filed challenging
Native Hawaiian programs.[379] The plaintiff in Carroll
v. Nakatani has challenged the Office of Hawaiian Affairs’ income and
revenue stream. The plaintiff in Barrett
v. State makes a broader challenge to the constitutionality of OHA, the
Department of Hawaiian Home Lands, and Native Hawaiian gathering rights. These
cases were subsequently consolidated, and will be presided over by Chief Judge
Ezra.

In
May 2001, a discrimination complaint was filed with the U.S. Department of
Education’s Office for Civil Rights against Kamehameha Schools. The
trustees of Kamehameha Schools—a perpetual, private, charitable trust
established by Princess Bernice Pauahi Bishop in 1884—have responded to
similar allegations in the past by stating that children of all racial or ethnic
backgrounds are admitted, provided that they have at least one Hawaiian
ancestor. Although Harold Rice’s attorney, John Goemans, dropped a 1997
lawsuit against the Internal Revenue Service making similar allegations, the IRS
nevertheless reviewed its 1975 position that Kamehameha Schools’ policy was
not discriminatory and, in 1999, reaffirmed the estate’s tax-exempt status.[380]

Recognition
Legislation before Congress: A Safe Harbor?

Native
Hawaiians are in a grassroots political struggle to regain control over Hawaiian
lands and to establish the right of self-governance. The desire for recognition
as a distinct indigenous people has resonated across the islands and in
Congress. In light of the Rice
decision, there is a sense of urgency to establish a procedure for formal
recognition of a political entity representing Native Hawaiians,[381]
and protect existing federal and state programs from future legal challenges. In
July 2000 and again in January and April 2001, Hawai‘i Senator Daniel Akaka
proposed legislation that would recognize Native Hawaiians as aboriginal,
indigenous, native people, with whom the United States had (and still has) a
unique political and legal relationship.[382]

In
short, the proposed legislation would establish a “process for the recognition
by the United States of a Native Hawaiian governing entity for purposes of
continuing a government-to-government relationship.”[383]
In broad terms, the new government’s potential power would be to negotiate
with the U.S. government, protect Native Hawaiian civil rights, and consent to
all property agreements.[384]
A United States Office for Native Hawaiian Relations will be established in the
Department of the Interior to, among other things, “effectuate and coordinate
the trust relationship between the Native American people and the United States
. . . and with all other Federal agencies . . . [both prior to and upon
recognition by the United States].”[385]
A Native Hawaiian Interagency Coordinating Group will also be created with
appointments to be made by the President from each federal agency that
implements policies that affect Native Hawaiians.[386]

Senator
Akaka’s written statement explained the genesis of this legislation and how it
was developed strategically in response to the Rice
decision:

While
the Rice case has impacted the
timing of the legislation to clarify the political relationship between
Native Hawaiians and the United States, this issue has been . . . [under]
discussion for many, many years within the Native Hawaiian community, the
State of Hawai‘i, and the federal government. I believe this issue would
have been addressed by legislation as part of the reconciliation process.[387]

What do
Native Hawaiians expect to obtain through the recognition bill? To many, the
legislation is about control: who has the right to control Hawaiian homelands
and other entitlements.[388]
Senator Akaka explained what he hopes the legislation will accomplish:

This
legislation provides tremendous opportunity for the Native Hawaiian
community to come together to begin to resolve long-standing issues. It
provides the opportunity for Native Hawaiians to have a seat at the table
with respect to federal policies impacting them. It provides the opportunity
for Native Hawaiians to begin to exercise their rights as native people to
self-governance.

This
legislation is also important to non-Native Hawaiians because it provides a
process to resolve long-standing issues that have concerned Hawaiians for
many, many years.[389]

Forum
panelists and members of the public offered opposing views on the necessity and
viability of the legislation proposed by Senator Akaka, reflecting the heated
debate the bill has sparked across Hawai‘i. Many would argue that disagreement
is to be expected given the nature of the issues, which involve deeply rooted
feelings of betrayal and entitlement. Clayton Hee, chairman of the Office of
Hawaiian Affairs (at the time), characterized the disagreement over the Akaka
bill as follows:

[W]e
live in a democracy, number one, and like other people, . . . not everyone
agrees on everything at the same time. So it should not be either surprising
or difficult to understand that, on legislation which will reshape the
history of people, unanimity is not achieved.[390]

The
Silver Lining: Support for the Proposed Legislation

The
Department of the Interior and the Department of Justice, in their October 2000
report, found that the Rice decision should not stand as an obstacle to the federal
government’s efforts to promote reconciliation with Native Hawaiians. The
departments also believed that the Rice
decision “highlights the importance of legislation to provide a statutory
basis for a government-to-government relationship with Native Hawaiians as
indigenous, aboriginal people.”[391]

Among
participants in the 2000 Advisory Committee forum who provided written and/or
oral testimony, there appeared to be more support for, than opposition to,
Senator Akaka’s recognition legislation. Based on his participation in
hearings on the bill, Clayton Hee agreed:

[I]t’s
my own view that if one were to base conclusions . . . [before] the federal
hearings on the Committee of Indian Affairs, which was conducted recently,
it’s my own conclusion that the support far outweighed the dissent.[392]

Ray
Soon, chairman of the Hawaiian Homes Commission, added that “the disagreement
is over process” and not the final outcome, which is the desire for
self-governance and self-determination.[393]

Tara
Lulani Mckenzie, president and chief executive officer of Alu Like, Inc.,
supported Senator Akaka’s recognition legislation as having the potential to
protect existing programs and resolve longstanding issues facing Native
Hawaiians such as political status and self-determination. She stated:

This
is only a very baby beginning step, but it is a step, and I don’t believe
in any way that it jeopardizes the rights to pursue independence in a
different venue, which is the international arena. . . . This is a
significant step for Native Hawaiians, but there is a lot of work still to
be done.[394]

According
to Mahealani Kamau‘u, executive director of the Native Hawaiian Legal
Corporation:

The
federal recognition bill now before Congress, which confirms the existence
of a political relationship between the United States and Native Hawaiians,
possibly recasting our status from a racial classification in such a manner
as to escape the pernicious application of constitutional law devoid of
contextual conscience, offers some promise.[395]

Former
Hawai‘i Supreme Court Justice Robert Klein stated that the Rice
decision galvanized Native Hawaiian communities’ efforts to obtain formal
recognition from Congress. Mr. Klein is optimistic that the Akaka bill will
remedy some of the problems faced by Native Hawaiians because they will become a
quasi-sovereign nation. Native Hawaiians will then be able to deal with the
government on the same level as American Indians and Alaska Natives, and “favorable
programs can continue without having the persistent invasive legal actions being
taken against them to disassemble them.”[396]

Former
federal magistrate Edward King also supported the Akaka bill as “an absolutely
essential requirement in order to establish the notion of the trust, to bring in
congressional action, and to allow the state to move in a way the majority of
these people intend.”[397]

Sherry
Broder, attorney for the Office of Hawaiian Affairs, argued that federal
recognition of Native Hawaiians is justified based on the fact that there are
557 federally recognized tribes in the United States.[398]
Formal recognition of Native Hawaiians, therefore, is “well within the power
of Congress and well within the tradition and history of the United States.”[399]

Dr.
Peter Hanohano compared the current legislative situation in the United States
with Canada’s situation. The Canadian Charter of Rights and Freedoms provides
in pertinent part:

Subsection
1 does not preclude any law, program, or activity that has as its object,
the amelioration of conditions of disadvantaged individuals or groups,
including those that are disadvantaged because of race, national or ethnic
origin, color, religion, sex, age, or mental or physical disability.[400]

In Dr.
Hanohano’s opinion, the United States could learn from Canada’s example.

The
proposed Akaka legislation derives, in part, from Native Hawaiian petitions in
the international arena. Absent the passage of the legislation by Congress,
Native Hawaiians will have no recourse but to state their claims in the
international arena. However, some Native Hawaiians fear passage of the Akaka
bill would thwart the ability of Hawaiians to claim sovereignty and seek
international justice. Professor Jon Van Dyke disputed this latter point by
citing section 10 of the Akaka bill, which states, “Nothing in this act is
intended to serve as a settlement of any claims against the United States or to
affect the rights of the Native Hawaiian people under international law.”[401]
Professor Van Dyke added:

[I]t’s
very clear that the rights of the Native Hawaiian people, and they certainly
have such rights under international law, are fully protected and preserved
by this bill. The bill, in my judgment would facilitate the process of
addressing those issues because it would allow the native people to have a
voice through the Native Hawaiian government.[402]

In
summary, the Akaka bill could be the silver lining for those who fear the Rice
decision will weaken the political, social, and cultural status of Native
Hawaiians. Ms. Mckenzie acknowledged that the Rice
decision could have a major impact on programs for the betterment of
conditions for Native Hawaiians, but she is confident that the realization of
self-determination through the Akaka bill raises the potential for Native
Hawaiian control over resources and lands, education systems, health and
government issues, economic destiny, and preservation of culture and language.
State Representative Sol Kaho‘ohalahala captured this sentiment in the
following statement:

I
have great faith that the State of Hawai‘i will one day realize that what
is good for Hawaiians is good for the whole state, to realize that greater
self-determination for Hawaiians means less responsibility for the state,
greater Hawaiian control in Hawaiian affairs means less mistakes in
solutions for Hawaiians and less liability for the state, and when justice
is served for Hawaiians, it is a victory for all.[403]

An
Unfit Solution: Opposition to the Proposed Legislation

Opponents
of the Akaka bill are fervent in their belief that it constitutes a selfish
attempt to perpetuate racial entitlement programs threatened by the Rice decision and an attempt to overrule the Supreme Court.[404]
They also contend that any reparations due to Hawai‘i as a result of the
island’s overthrow and annexation are due to all descendants of island
residents at that time and not just Native Hawaiians.[405]
There are Native Hawaiians who also disagree with the Akaka bill, viewing it as
yet another attempt of the U.S. government to minimize the rights of Native
Hawaiian people and infringe upon their traditional beliefs. Some contend that
the Kingdom of Hawaii is still a legal entity today, and the Akaka bill is
further evidence of the illegal occupation of Hawai‘i.[406]

One of
the main criticisms of the Akaka bill is that it is “top-down” legislation—i.e.,
the people who will be most directly affected by its provisions did not have
input during its development. Others criticize the legislation as being
inconsistent with the beliefs and rights of the Native Hawaiian people. For
example, Dr. Richard Kekuni Akana Blaisdell, a physician and professor of
medicine at the University of Hawai‘i, opposed the bill because:

its
process and its product is a gross violation of our Kanaka Maoli inherent
sovereignty and right to self-determination. And we feel that there is
sufficient evidence in the American law already existing to protect current
federal and other government programs providing funds for our people, such
as in health.[407]

Senator
Akaka’s written statement noted, however, that the Native Hawaiian community
did have the opportunity to provide input in the development of the legislation.
Five working groups were formed throughout the state: the Native Hawaiian
Community Working Group, the State Working Group, the Federal Officials Working
Group, the Native American and Constitutional Scholars Working Group, and the
Congressional Members and Caucuses Working Group.[408] Ms. Mckenzie further
challenged the notion that the Akaka bill did not have input from the Native
Hawaiian community. She participated in the Native Hawaiian Community Working
Group, which held meetings statewide to discuss the bill and solicit input.[409]

Sondra
Field-Grace, a local activist, characterized the bill as “an outrage that goes
beyond any violation of our civil rights.”[410]
She questioned the manner in which the hearings on the bill were conducted and
contends that some of the hearings concerning the bill were canceled because
there was strong opposition to the bill. She argued further that the bill had
been “rushed through the Congress with testimonies of only people who are in
favor of the bill” and petitioned the U.S. Commission on Civil Rights to take
up the matter. She told the Advisory Committee:

The
manipulation and outright lies of the Hawai‘i congressional
representatives and the manufactured consent of the media on the Akaka bill
must be taken up by this Commission. Your stated role as an independent
bipartisan fact-finding agency of the federal executive branch may be the
opportunity to get . . . [the President] to veto this bill and call for an
independent investigation of the Hawai‘i congressional representatives and
the Justice and Interior Departments. You can play the role that the Blount
Report did for President Cleveland, but you must move quickly. The civil
rights of an entire nation are on the chopping block. You cannot plead
ignorance. The facts are there for all the world to see.[411]

Those
who support the Rice decision are
typically opposed to the Akaka legislation. Dr. Kenneth Conklin stated that the
bill would represent the first time in history that Congress would “recognize
a political entity that never existed, get people to sign up, allow it to invent
its own membership rules as it goes along, and then negotiate with it over
money, land, and power.”[412]
The Hawaii Advisory Committee notes, however, that the history of the Indian
Reorganization Act indicates otherwise.

Although
she supports the Akaka bill, Tara Lulani Mckenzie, president and chief executive
officer of Alu Like, Inc., was asked to describe what she perceives as the
downsides to its passage. First, she fears that Native Hawaiian communities may
be further divided by the bill, resulting in friction between the bill’s
supporters and opponents. Second, the bill might create friction between Native
Hawaiians and other native people regarding existing programs for Native
American and Native Alaskan “Indians.”[413]
While she recognized that the bill was patterned after many Native American
efforts, she thought it was important to emphasize that Native Hawaiians are
distinct people with distinct needs. Finally, Ms. Mckenzie indicated that the
actual implementation of the bill’s provisions and the efforts required to
develop interim programs could pose additional problems.[414]

Conclusions
and Recommendations

The
Hawaii Advisory Committee issues this report on the basis of the record from its
1998 and 2000 community forums. The Advisory Committee has examined the record
and fully considered the views of all parties submitting testimony. As a result
of the testimony provided at these meetings, the Hawaii Advisory Committee now
recognizes an even greater urgency in the circumstances faced by Native
Hawaiians. Absent explicit federal recognition of a Native Hawaiian governing
entity, or at least a process for ultimate recognition thereof, it is clear that
the civil and political rights of Native Hawaiians will continue to erode.

The
current political crisis represents an opportunity to clarify longstanding
issues that have served as obstacles to the resolution of claims against the
federal and state governments. Because of recent judicial and legislative
developments, the Native Hawaiian civil rights movement is rapidly gaining
momentum. Although the Rice decision
is limited to the 15th Amendment, many Native Hawaiians perceive it as a threat
to existing federal and state programs established to better their economic and
social conditions. Observers have referred to the Rice decision as a wake-up call to Native Hawaiians, encouraging
them to unite in an effort to address political challenges to their continued
ability to maintain their cultural identity. The Hawaii Advisory Committee
concludes that precautionary steps must be taken to secure the rights of Native
Hawaiians.

Therefore,
the Advisory Committee strongly recommends implementation of the following
actions to uphold the civil rights of Native Hawaiians and facilitate the
process of reconciliation with the United States in the aftermath of the illegal
overthrow of the Hawaiian Kingdom in 1893:

1.
The federal government should accelerate efforts to formalize the political
relationship between Native Hawaiians and the United States.

This
recommendation can be accomplished through the formal and direct recognition by
Congress of the United States’ responsibilities toward Native Hawaiians, by
virtue of the unique political history between the United States and the former
Kingdom of Hawaii. If necessary, the federal government should provide financial
assistance to facilitate mechanisms for the establishment of a sovereign
Hawaiian entity, under guidance from leaders of the Native Hawaiian
self-determination effort and in consultation with Native American and Native
Alaskan leaders who have faced similar challenges. The Hawaii Advisory Committee
considers the denial of Native Hawaiian self-determination and self-governance
to be a serious erosion of this group’s equal protection and human rights.
Therefore, the Advisory Committee requests that the U.S. Commission on Civil
Rights urge Congress to pass legislation formally recognizing the political
status of Native Hawaiians.

The
history of the Hawaiian nation has many parallels to the experiences of Native
Americans. There is no rational or historical reason, much less a compelling
state interest, to justify the federal government denying Hawaiians a process
that could entitle them to establish a government-to-government relationship with the United
States. That process is currently available to Native Americans under the Indian
Commerce Clause of Article I, Section 8, Clause 3 of the U.S. Constitution.

The
Supreme Court observed that “whether Congress may treat the native Hawaiians
as it does the Indian tribes” is a matter of some dispute, citing scholarly
articles by professors Jon Van Dyke and Stuart Minor Benjamin.[415]
Members of the Hawaii Advisory Committee have analyzed both articles and find
Van Dyke’s argument to be more persuasive.[416]

The
benefits afforded to Native Americans under their status as recognized tribes
who have a political relationship with the United States—which Native
Hawaiians do not have full access to—include the ability to manage the
resources and lands under their control. Hawaiians have no direct control of
such assets. Other benefits of formal political status include:

the
ability to seek federal funding for housing assistance

the
ability to sue the federal government for breaches of trust

the
right to place native children in a culturally appropriate environment

the
ability to promote their economic opportunities through favorable tax
treatment of ventures within their jurisdiction

Native
Hawaiians should not be precluded from qualifying as a distinct political class
of people, like Native Americans and Native Alaskans. The history of the
indigenous Hawaiian people is in many ways analogous to the history of Native
Americans and Native Alaskans. Over 150 statutes have been enacted for their
benefit. It is, therefore, clear that Native Hawaiians have a historical and
special relationship with the federal government.

Furthermore,
largely because of their status as an aboriginal people, Hawaiians retain
special property rights unlike any other native people in America that have been
perpetuated since the creation of private property rights in Hawai‘i at the
time of the Mahele. The Mahele was a land division authorized by Kamehameha III
in 1848 to distribute fee-simple title to private parties for the first time in
the history of these islands. However, these new rights were subject to retained
rights of native people to continue the traditional gathering, cultivation, and
worship on those lands that was basic to the Hawaiian culture. Each subsequent
government after the overthrow of the kingdom respected and affirmed these
rights until the present.

The
Hawai‘i Supreme Court, interpreting these rights, has held that all public
agencies are obligated to protect the reasonable exercise of customarily and
traditionally exercised rights of Hawaiians to the extent feasible.[417]

2.
The federal government should implement the recommendations made by the
Department of the Interior and Department of Justice in their October 2000
report on the Reconciliation Process between the Federal Government and Native
Hawaiians.

A report
released by the Department of the Interior and the Department of Justice in
October 2000 jointly recommended:

Native
Hawaiians should have self-determination over their own affairs within the
framework of federal law as do Native American tribes.

Congress
should enact further legislation to clarify Native Hawaiians’ political
status and create a framework for recognizing a government-to-government
relationship.

An
office should be established within the Department of the Interior to
address Native Hawaiian issues.

The
Department of Justice should assign the Office of Tribal Justice on an
ongoing basis to maintain a dialogue with Native Hawaiians.

A
Native Hawaiian Advisory Commission should be established to consult with
all bureaus within the Department of the Interior regarding lands management
and resource and cultural issues affecting Native Hawaiians.

Whether
or not Congress eventually adopts recognition legislation, the executive branch
should pursue all measures within its power to effectuate reconciliation with
Native Hawaiians. Further delays are not acceptable. The federal and state
governments must break the cycle of promises made to the Native Hawaiian people,
only to be broken thereafter. The Hawaii Advisory Committee concludes that true
reconciliation between Native Hawaiians and the United States can serve as both
a reaffirmation of the democratic ideals upon which our nation was founded and a
worthy example of peaceful dispute resolution for the international community.

3.
Diverse viewpoints among Native Hawaiians should be respected.

Diverse
viewpoints are valued in American democracy and should be respected when
displayed among Native Hawaiians. The U.S. government should acknowledge that it
bears some responsibility for fostering this perceived division. The Hawaii
Advisory Committee concludes that Native Hawaiian communities are in fact united
in their desire for action to address the wrongs that have been committed
against them. Although some Native Hawaiians do not agree with the proposed
recognition legislation currently pending before Congress, including those who
want to achieve independent nationhood status, the Advisory Committee is
convinced that the legislation as currently worded would not preclude them from
pursuing matters in the international arena. To the extent that disagreements
are perceived within the Native Hawaiian community regarding the proper form
that a Hawaiian sovereign entity should take, they must not serve as barriers to
the implementation of reconciliation efforts by the United States.

4.
International solutions should be explored as alternatives to the recognition of
a Native Hawaiian governing entity.

The
Hawaii Advisory Committee recognizes that the sentiment for an international
resolution to restore a sovereign Hawaiian entity is beyond the immediate scope
and power of the U.S. Commission on Civil Rights. Nevertheless, that limitation
does not preclude the United States from exploring such alternatives as a part
of the reconciliation process that the United States committed to pursue in the
1993 Apology Resolution. In order to make this process truly meaningful, the
federal government should engage in a dialogue with Hawaiian leaders to examine
the issues surrounding as wide a variety of options for reconciliation as
possible.

The
principles of self-determination and self-governance—which are consistent with
the democratic ideals upon which our nation is founded—can only be meaningful
if Native Hawaiians have the freedom to examine diverse options for exercising
the sovereignty that they have “never directly relinquished.”[418]
Accordingly, the United States should give due consideration to re-inscribing
Hawai‘i on the United Nations’ list of non-self-governing territories, among
other possibilities. Our nation’s experiment in democracy will gain credence
(and, therefore, influence) with members of the international community to the
extent that we are able to fully embrace the ideal that motivated this country’s
founding fathers: consent of the governed.

The
Hawaii Advisory Committee is fully cognizant of the concern expressed by some
that international resolution would necessarily involve secession, a drastic
endeavor over which this nation purportedly fought a civil war. However, this
view ignores the troubled and racist roots of our nation’s history. The Civil
War was at its core a conflict over the issue of slavery. Moreover, the Civil
War Amendments and Civil Rights Acts, upon which the plaintiff in Rice
based his claims, were supposed to effect a reconstruction of American society
through equality for African Americans. Tragically, this promise, like the
promises made by the United States to its indigenous people, was broken.[419]

The
principle of self-determination necessarily contemplates the potential choice of
forms of governance that may not be authorized by existing domestic law.[420]
Whether such a structure is politically or legally possible under the law is
secondary, however, to the expression of one’s
desire for self-determination. The important proposition is that those
who would choose to swear their allegiance to a restored sovereign Hawaiian
entity be given that choice after a full and free debate with those who might
prefer some form of association with the United States (including, perhaps, the
status quo).

In
modern history, Hawaiians have demonstrated an enviable capacity for peaceful
discourse and nonviolence. The United States should respect that political
maturity and allow for conditions that will give Native Hawaiians the full
opportunity to express their desires for self-determination. If necessary, that
process should engage respected international observers who could help fashion a
unique solution that suits the political needs of Hawaiians.

Those
supervising the reconciliation process should provide for an open, free, and
democratic plebiscite on all potential options by which Native Hawaiians might
express their inherent right to self-determination. The process should allow for
international oversight by nonaligned observers of international repute. After a
period for organization of that government, the federal government should engage
in negotiations with the sovereign Hawaiian entity. The Hawaii Advisory
Committee believes that these deliberations should take into consideration and
protect, or otherwise accommodate, the rights of non-Native Hawaiians.
Thereafter, the federal government should provide financial assistance for the
educational effort that may be necessary to reconcile conflicts raised by the
choices made by Native Hawaiians. If necessary, the United States should engage
in continuing negotiations to seek resolution of any outstanding issues with the
sovereign Hawaiian entity.

5.
Administrative rules and policies to support the principles of
self-determination should be adopted pending formal recognition of a sovereign
Hawaiian entity.

The
Hawaii Advisory Committee is aware that the process for recognizing a Native
Hawaiian governing entity will take some time. Therefore, it is vitally
important that appropriate steps be taken to ensure the betterment of conditions
for Native Hawaiians in the interim. For example:

granting
Native Hawaiians and Native Hawaiian organizations the right to contract
with federal agencies to assume programmatic responsibility for implementing
and administering federal legislation adopted for their benefit[421]

meeting
with Native Hawaiian political leaders and representatives of the State of
Hawai‘i, in Hawai‘i, to review options for restoring nationhood to
Native Hawaiians, including models for establishing a
government-to-government relationship other than the political structure
created for Indian tribes and Alaskan Native villages (commonwealth,
federation, etc.)

establishing
an escrow account for the benefit of the eventual sovereign Hawaiian entity,
into which the United States and the State of Hawai‘i shall begin to make
payments for its use of ceded lands

The
Hawaii Advisory Committee, therefore, urges the appointment of a Special Advisor
for Indigenous Peoples to the Domestic Policy Council at the White House. The
special advisor would coordinate the flow of information and recommendations
from all federal and state agencies dealing with indigenous rights, including
all Native Hawaiian issues and concerns, to the White House.

The
special advisor should also establish formal liaisons with other agency
officials having responsibilities affecting Native Hawaiians, including an
office located in Hawai‘i to promote direct communication with Native
Hawaiians. Another possibility is the formal establishment of an Interagency
Coordinating Group, as contemplated by S. 746 (2001) currently pending before
Congress. In whatever form it takes, this coordinating effort should involve
regular, periodic reviews of each agency official and an annual public report of
relevant actions and accomplishments.

The
Apology Resolution acknowledges that the United States acquired nearly two
million acres of ceded lands from the Republic of Hawaii “without the consent
of or compensation to the Native Hawaiian people of Hawaii or their sovereign
government.” As a result, at least a moral, if not a legal, obligation exists
relating to the ongoing use of these lands. The Advisory Committee does not
believe that benefits currently afforded to Native Hawaiians amount to adequate
compensation for the adverse effects of the illegal overthrow upon them or
otherwise justify continued use of these valuable resources without
compensation. Other alleged abuses, including the transfer of ceded lands,
should also be addressed, but a comprehensive inventory must be undertaken while
the recognition process is moving forward in order to properly assess and
account for such uses of these former lands of the Kingdom of Hawaii.[422]

6.
Regular evaluations should be conducted of federal and state programs for the
benefit of Native Hawaiians.

A
common, and recurring, complaint heard by the Hawaii Advisory Committee over the
past two decades is that poor management has resulted in inadequate distribution
of the benefits earmarked for Native Hawaiians. Programs for Native Hawaiians,
whether established by the State of Hawai‘i (such as the Office of Hawaiian
Affairs and the Hawaiian Homes Commission) or through congressional enactment,
should be evaluated on a regular basis by a team of local, state, and federal
officials, including a delegation of Native Hawaiians, to determine if they are
adequately carrying out their missions. Appropriate performance measures should
be put in place to determine if the programs are doing what they were
established to do, i.e., improvethe
conditions of Native Hawaiians. The Department of the Interior should provide
technical assistance as needed to ensure that the responsibilities of the
various state agencies are met.[423]

7.
Enforcement of the federal and state governments’ trust responsibilities to
Native Hawaiians should be enhanced.

The
federal government’s unwillingness to enforce trust responsibilities under the
State of Hawai‘i Admission Act suggests the need to enact legislation to allow
for the enforcement of the Ceded Lands Trust and Hawaiian Home Lands Trust in
federal court, including a right of action and a waiver of sovereign immunity.[424]
Considering the fact that “[t]he Native Hawaiian people are the only native
people who have never been given the right to bring their claims against the
United States to any independent body,”[425]
the U.S. government apparently remains free to ignore its trust obligations to
Native Hawaiians—not to mention the recommendations contained in this Advisory
Committee’s two previous reports—without any true accountability.[426]
The absence of such relief has not been adequately explained in light of
historical procedures implemented to allow Native Americans and Native Alaskans
to air their claims and seek justice. The Hawaii Advisory Committee concludes
that the historical exclusion of Native Hawaiians’ claims against the
government is a major contributing factor to the adverse conditions they now
face.

Claims
by Native Hawaiians concerning breaches of trust committed by federal officials
in charge of administering the Hawaiian Home Lands Trust prior to statehood, for
example, need to be identified, investigated, and redressed where appropriate.
The failure of state and federal agencies to pay compensation for their use of,
or for allowing private use of, the ceded lands also needs to be addressed.
While these trusts are still being administered by the State of Hawai‘i, there
should at the very least be designated a representative in the Department of
Justice with direct responsibility for enforcement of these trust
responsibilities. Such representative must hold at least annual meetings with
Native Hawaiian organizations and individuals, in Hawai‘i, to update them on
progress relating to investigations of reported problems. These reports ought to
include the status of any discussions, negotiations, arbitrations, or litigation
commenced to resolve outstanding issues.

8.
State and federal funding should be increased.

The
Advisory Committee concludes that the betterment of conditions for Native
Hawaiians will ultimately improve the conditions of all residents of the state
of Hawai‘i. Therefore, state and federal funding should be allocated for the
establishment of additional social and economic programs to assist the Native
Hawaiian community—not only with improving their economic situation, but also
with perpetuating the Hawaiian culture and furthering understanding about
Hawaiian needs. Possible areas for additional funding include higher education,
the establishment of Hawaiian cultural centers and language immersion programs,
medical services, job training programs, and housing programs.[427] The expenditures of
federal and state dollars for a variety of educational, health, employment
training, and other social services are justified both in recognition of the
disproportionate needs of Hawaiians in these areas, and as a remedy (for the
loss of their nationhood) that is distinct from traditional civil rights
remedies.[428]

9.
Context-sensitive planning should be required with respect to all governmental,
judicial, or legislative actions affecting Native Hawaiians.

The
Advisory Committee believes that the cultural, political, historical, and
economic contextwithin which
Native Hawaiians are situated must be taken into consideration when developing
programs to serve the Native Hawaiian
community. This is also true with respect to the rendering of judicial orders
and the development of state and federal legislation governing Native Hawaiian
issues. Accordingly, the Hawaii Advisory Committee urges further that
eligibility for such programs be based upon Native Hawaiian traditions regarding
cultural identity (e.g., the Kumulipo), which more accurately reflect group
membership than any blood quantum requirement.[429]

[2] Beginning in the
mid-1970s, the U.S. Congress defined the term “Native Hawaiian” (capital
“N”) to include all persons who are descended from the people who were
in the Hawaiian islands as of 1778, when Captain James Cook discovered the
islands for the Western world. Compare
Native American Programs Act of 1974, Pub. L. No. 93-644, § 801, 88
Stat. 2291, 2324 (1975), with
Hawaiian Homelands Homeownership Act of 2000, Pub. L. No. 106-569, tit. V,
subtitle B, § 513, 114 Stat. 2944 (2000) (amending tit. VIII, §
801(9)(B)). Previously, Congress used the term “native Hawaiian” (lower
case “n”) with regard to persons having 50 percent or more Hawaiian
blood. See Hawaiian Homes
Commission Act, Pub. L. No. 67-34, ch. 42, § 201(a)(7), 42 Stat. 108
(1921); id. § 209, as amended (subsequently modified to 25
percent for heirs). Except where otherwise indicated, the Hawaii Advisory
Committee intends the broader application of the term. Use of this
terminology should not be construed as an attempt to either define or limit
the scope of those persons whose rights are the subject of this report.

The
Hawaii Advisory Committee is also aware that many Native Hawaiians prefer to
identify themselves as their ancestors once did, i.e., Kanaka Maoli. See
text accompanyingfootnotes
57 and 67 below (Richard Kekuni Blaisdell statement). Other Native Hawaiians
contest the validity of this term. Although use of the term Kanaka Maoli is
becoming more widespread, many of the documents discussed in this report and
statements provided by members of the public use the term Native Hawaiian
instead. Considering the complexity of the issues involved, the Hawaii
Advisory Committee has decided to follow common usage in order to avoid
potential confusion.

[6] Joint Resolution of
Congress to acknowledge the 100th anniversary of the overthrow of the
Kingdom of Hawaii and to offer an apology to Native Hawaiians, S.J. Res. 19,
103d Cong., 1st Sess., Pub. Law No. 103-150, 107 Stat. 1510 (1993)
(hereafter cited as Apology Resolution). The Apology Resolution is a statute
of the U.S. Congress, passed by the Senate on Oct. 27, 1993, the House on
Nov. 15, 1993, and signed by President William Jefferson Clinton on Nov. 23,
1993. It has the same effect as any other law enacted by Congress. See,
e.g., Van Dyke, “The Political Status of the Native Hawaiian People,”
p. 107, n.69.

[10] The Hawaii Advisory
Committee uses diacritical markings, where appropriate, in keeping with ‘Olelo
Hawai‘i, i.e., the Hawaiian language. Vowels marked with a kahako, or
macron, are somewhat longer than other vowels and are always stressed. The
‘okina, or glottal stop, is similar to the sound between the oh’s in
English oh-oh. The Hawai‘i Supreme Court began using these diacritical
markings on Hawaiian words during the 1990s as reflected in the Court’s
published decisions. On Oct. 22, 2000, the Honolulu Advertiser
announced its permanent commitment to the practice, except where it is known
that a particular individual, company, or organization does not wish to use
the kahako or ‘okina in its name. See
<http://the.Honoluluadvertiser. com/2000/Oct/22/1022localnews14.html>.
Hawaiian is one of the official languages of the State of Hawai‘i. Haw.
Const. art. XIV, § 4.

Members
of the Hawaii Advisory Committee requested that certified shorthand
recorders familiar with the Hawaiian language be retained to document the
proceedings during its community forums. For unexplained reasons, this
request was not honored. Therefore, this report fails in some important
respects to accurately reflect the testimony provided during the forums. As
a result, the proceeding transcripts sometimes merely indicate “(speaking
Hawaiian)” and even “(inaudible)” where substantive testimony was
provided in ‘Olelo Hawai‘i.
Despite efforts to correct misspellings of Hawaiian words and phrases,
additional errors may not have been detected.

[15] According to Kahu
(Reverend) Charles Kauluwehi Maxwell, chairperson of the Hawaii Advisory
Committee, the opening chant, or ‘oli, recounted this fact as an excerpt
from the Kumulipo. Regrettably, the ‘oli was not recorded in the
transcript of this meeting.

[20]Compare Robert C.
Schmitt, Demographic Statistics of Hawaii, 1778–1965 (Honolulu, HI:
University of Hawai‘i Press, 1968), pp. 14–25, table 6, with
David E. Stannard, Before the Horror: The Population of Hawai‘i on the
Eve of Western Contact (Honolulu, HI: SSRI, University of Hawai‘i,
1989), p. 30. See also Herb
Kawainui Kane, Ancient Hawaii (Honolulu, HI: Kawainui Press, 1997) (“extensive
remains support a minimum estimate of 800,000 at that time”), p. 69.

[21] U.S. Department of the
Interior and U.S. Department of Justice, “From Mauka to Makai: The River of Justice Must Flow Freely,”
Report on the Reconciliation Process between the Federal Government and
Native Hawaiians, Oct. 23, 2000, p. 21 (hereafter cited as Departments of
the Interior and Justice, Reconciliation Report). This document may also be
accessed at <http://www.doi.gov/nativehawaiians/report.pdf>.

[33] Ibid. The U.S. Supreme
Court’s explication of these events reveals one of several ironies to be
found in the Rice v. Cayetano
decision. The Court cast the “Western business interests and property
owners” essentially as soldiers of democracy who “extended the right to
vote to non-Hawaiians,” but omitted mention of the fact that the Bayonet
Constitution disenfranchised naturalized Hawaiian Kingdom subjects of Asian
ancestry (to whom the franchise had been extended long before similarly
situated Asians in the United States received the right to vote) while
permitting resident aliens of
Caucasian ancestry to vote. Rice, 120
S. Ct. at 504. See, e.g.,
Kuykendall, The Hawaiian Kingdom, vol.
III, p. 402.

[36] Departments of the
Interior and Justice, Reconciliation Report, pp. 26–27. See also
Tom Coffman, Nation Within, The Story
of America’s Annexation of the Nation of Hawai‘i (Kane‘ohe, HI:
Epicenter, 1998), pp. 109–22.

[37] Coffman, Nation
Within, p. 117 (quoting B.F. Tracy, Secretary of the Navy). Coffman also
discusses meetings with Secretary of State James G. Blaine, who is described
as a “lifelong political ally” of John Stevens. Ibid.

[45] Apology Resolution, S.J.
Res. 19, 103d Cong., 1st Sess., Pub. Law No. 103-150, 107 Stat. 1510, 1512
(1993). A protest song that continues to be sung to this day recounts that
many Native Hawaiians refused to sign a loyalty oath required by the
Republic of Hawaii, stating that they would rather lose their jobs and eat
rocks than give up their land. See Noenoe K. Silva, Kanaka Maoli Resistance to Annexation, ‘Oiwi: A Native Hawaiian
Journal, vol. 1 (Honolulu, HI: Kuleana ‘Oiwi Press, 1998), p. 51. The Mele
‘Ai Pohaku (Rock-Eating Song),also
known as Kaulana Na Pua
(Famous Are the Children), has a sweet melody that belies the bitterness of
its lyrics. Albert J. Schütz, The
Voices of Eden (Honolulu, HI: University of Hawai‘i Press, 1994), pp.
353–54.

By
vowing to “eat rocks” rather than sign the loyalty oath, Native
Hawaiians embraced and relied upon deep cultural values. See Charles
Maxwell, statement, Forum 1998 Transcript, vol. 2, p. 249. Kahu Maxwell
explained that ‘aina, or land, must be understood in the context of the
Kumulipo. “I want to clarify some of the points you made about the word
‘aina. ‘Ai means to ‘to eat.’ Na
means ‘the.’ So the land, for the Hawaiian people, means ‘the food,
sustenance.’ It’s the mythical association to the land, even to the
rock, the pohaku. It says ‘ai pohaku, which means ‘to eat the
rock.’ But the land is that sacred. It is the sustenance of, the core of,
the Hawaiian people.” Ibid.

[52] The Hawaii Advisory
Committee has studied and reported on these matters in its two previous
reports: A Broken Trust, The Hawaiian
Homelands Program: Seventy Years of Failure of the Federal andState
Governments to Protect the Civil Rights of Native Hawaiians, 1991; and
Breach of Trust? Native Hawaiian Homelands, 1980.

[58] Lind, Hawaii’s
People, p. 25. There is no precise word for “race” in the Hawaiian
language. The closest term is lahui, which is also defined to mean nation,
tribe, people, or nationality. Pukui and Elbert, Hawaiian
Dictionary, pp. 190, 509.

[61] OHA, Native
Hawaiian Data Book–1998, “Population: Past and Present,” p. 8. The
Health Surveillance Program estimates that Hawaiians make up 19 percent of
Hawaii’s population, as compared with the census estimate of 12.5 percent.
Ibid. Although disputed by some, it is generally accepted that the
conditions of Native Hawaiians are worse than those of other ethnic groups
in Hawai‘i. See, e.g., Forum 2000 Transcript, pp. 173–77
(questions and comments by Commissioner Elsie Meeks, Clayton Hee,
Commissioner Yvonne Lee, and Ray Soon, regarding statistics).

[68] Draft Declaration on the
Rights of Indigenous Peoples As Agreed upon by the Members of the Working
Group at its Eleventh Session, U.N. ESCOR, Comm’n on Hum. Rts., Sub- Comm’n
on Prevention of Discrimination and Protection of Minorities, 45th Sess.,
Annex 1, Agenda Item 14, at 50, art. 6, U.N. Doc. E/CN.4/Sub2/1993/29
(1993); Kame‘eleihiwa statement, Forum 2000 Transcript, p. 33.

[101]
Ibid., p. 220. Although a site has been designated for the University of
Hawai‘i at West O‘ahu, courses are being taught and administrative
functions carried out in portable and other facilities at the Leeward
Community College.

[156]
James Mee statement, Forum 1998 Transcript, vol. 1, p. 50 (responding that
Senators Slade Gorton and George Brown “apparently admitted that they did
not dispute or were not aware of anything to contradict the facts”).
Senator Akaka’s legislative aide observed that if the senators wanted to
challenge the findings in this Apology Resolution, “they should have held
the bill and requested that it not be voted upon.” Kia‘aina statement,
Forum 1998 Transcript, vol. 1, p. 57. Mee’s primary concern was as
follows: that the Apology Resolution was not intended to create any legal
rights, much less serve as an admission that Hawaii’s position as a state
was in question. Mee statement, Forum 1998 Transcript, vol. 1, pp. 45–46
(noting lawsuits relying, in part, on the Apology Resolution in arguing that
Hawai‘i was illegally annexed). Second, Mee claims the finding that the
ceded lands were acquired by the United States without payment of
compensation to the Hawaiian people is inaccurate. Ibid., pp. 47–48.

[158]
Kina‘u Boyd Kamali‘i, statement before the Hawaii Advisory Committee to
the U.S. Commission on Civil Rights, meeting of Sept. 28, 2000, as recorded
in notes taken by David M. Forman, acting chairperson (hereafter cited as Kupuna
Forum).

[161]
The twists and turns of the relationship between Native Hawaiians and the
State of Hawai‘i similarly reveal a disconcerting history of “broken
promises” with respect to efforts to redress past wrongs. For example, in
1991, the state gave Native Hawaiians the right to sue the state for
mismanagement of Hawaiian homelands provided they appear first before a
claims review panel. The panel awarded millions of dollars in damages to
thousands of Native Hawaiian claimants, subject to approval by the
legislature. At that point, the legislature violated the claimants’ rights
to due process by changing the rules midstream. When the legislature failed
to act on the panel awards, the claimants were unable to file suit in the
courts. Pat Omandam, “Hawaiians
seek to sue state over land disputes,”The Honolulu
Star-Bulletin, June 8, 2000, accessed at
<http://star-bulletin.com/2000/06/09/news/story2.html>.

[166]
U.S. Department of the Interior, Office of the Solicitor, Statement of
Solicitor John D. Leshy, Nov. 15, 1993. Trask statement, Forum 1998
Transcript, vol. 1, p. 121. See also Kia‘aina statement, Forum 1998
Transcript, vol. 1, p. 20 (citing pending litigation); Han v. United States,
45 F.3d 333, 337 n.3 (9th Cir. 1995) (concluding the United States does not
have a general fiduciary obligation to bring suit against the state for any
particular breach of trust, because the Department of the Interior did not
have the kind of “pervasive role” in the management of trust lands that
was involved in United States v. Mitchell, 463 U.S. 206 (1983)).

[183]
Trask statement, Forum 1998 Transcript, vol. 1, p. 126. Trask also noted
that the Native Hawaiian sovereignty initiative known as Ka Lahui Hawai‘i
has developed a comprehensive proposal to implement reconciliation, which
she attached as exhibit F to her written submission. Ibid., pp. 124–25.

[189]
Mee statement, Forum 1998 Transcript, vol. 1, p. 43. See also ibid.,
pp. 44–45 (“there are many other people in Hawai‘i that were affected,
and even today, are potentially affected by what can happen in the whole
process of reconciliation”).

[192]
Ferdinand “Danny” Aranza statement, Forum 1998 Transcript, vol. 2, p.
220. In any event, there are indications that Native Hawaiians can and have
reached consensus to a certain degree on issues relating to sovereignty and
self-determination. Kamali‘i statement, Forum 1998 Transcript, vol. 2, pp.
275–76 (citing the Palapala ‘Aelike,
or document of agreements, which was developed by more than 1,000
individuals and representatives of Native Hawaiian organizations, through an
18-month process that preceded the Advisory Committee’s 1998 forum).

[213]
Joint Resolution Annexing Hawaii to the United States (Newlands Resolution),
J. Res. 55, 55th Cong. (1898). See
also “The History of OHA,” accessed at
<http://www.planet-hawaii.com/oha/topnav.html>; Message of the
President to the Senate and House of Representatives, reprinted in H.R.
Rep. No. 53-243 at 3–17 (1893). The
Hawaiian islands consist of approximately 4 million acres, of which 1.8
million acres were originally crown and government lands (formerly held in
trust by Queen Lili‘uokalani and the government of the independent Kingdom of Hawaii) and now
referred to as the ceded lands. Some of these lands have been
withheld by the federal government, transferred to private ownership, or
disposed of in other ways. Thus, the State of Hawai‘i currently
administers approximately 1.2 million acres of the ceded lands trust.

[214]
Hawaiian Homes Commission Act of 1920, Pub. L. No. 67-34, 42 Stat. 108
(1921). This act was, in part, a response to the concern that the number of
persons with “full Hawaiian blood” was rapidly decreasing, and they
would soon become a minority group in Hawai‘i. Id.H.R.
Rep. No. 839, 66th Cong., 2d Sess. 4 (1920). The HHCA was also
enacted to redress a historically inequitable distribution of land, wherein
the one-third interest of the common people was ignored and presumably
reverted to the crown in trust, then taken by the United States upon
annexation. See id. at 5.

The
definition of “native Hawaiians” was “any descendant of not less than
one-half part of the blood of the races inhabiting the Hawaiian islands previous
to 1778.” HHCA, § 201(a)(7) (emphasis added). See
also Lesley Karen Friedman, “Native Hawaiians, Self-Determination, and
the Inadequacy of the State Land Trusts,” Hawaii Law Review, vol.
14 (1992), p. 536 (citing H.R. Rep. No.
839, 66th Cong., 2d Sess. 4 (1920)). Senator John H. Wise, a member of the
“Legislative Commission of the Territory [of Hawai‘i]” and an author
of the HHCA, stated the purpose of the act was to “rehabilitate” the
Native Hawaiian people on their own homelands. “The Hawaiian people are a
farming people and fishermen, out of door people, and when they were frozen
out of their lands and driven into the cities they had to live in the
cheapest places, tenements. That is one of the reasons why the Hawaiian
people are dying. Now the only way to save [them] . . . is to take them back
to the lands and give them the mode of living that their ancestors were
accustomed to and in that way rehabilitate them.” Ibid.

[220]Haw. Rev. Stat. § 10-3 (1993).
SeeHaw.
Const. art. XII, § 5. OHA has a nine-member board of trustees, who
must be Hawaiians. See alsoHaw.
Rev. Stat. § 13D-1 (1993). A “Hawaiian” is “any descendant of
the aboriginal peoples inhabiting the Hawaiian Islands which exercised
sovereignty and subsisted in the Hawaiian Islands in 1778, and which peoples
thereafter have continued to reside in Hawaii.”
Id.

[221]Haw. Rev. Stat. § 10-13.5
(1993). The State of Hawai‘i created OHA as a method of fulfilling the
trust obligation it accepted from the federal government. Hawaii’s
legislature also funds OHA.

[223]See 1993 Haw. Sess. Laws, Act 359, amended by 1994 Haw. Sess.
Laws, Act 200, amended by 1996
Haw. Sess. Laws, Act 140. “The
purpose of this Act is to acknowledge and recognize the unique status that
the Native Hawaiian people bear to the State of Hawaii and to the United
States and to facilitate the efforts
of Native Hawaiians to determine self-governance of their own choosing.”
1996 Haw. Sess. Laws, Act 140,
§ 2 (emphasis added).

[224]
1993 Haw. Sess. Laws, Act 359
§ 4(b). The Admission Act established an agreement between the United
States and the State of Hawai‘i, in which the federal government
transferred land ownership to Hawai‘i to hold in public trust for the
people of Hawai‘i. A portion of the proceeds of the trust lands are to be
employed for the “betterment of the conditions of native Hawaiians.”
Admission Act of 1959, Pub. L. No. 86-3, § 5(f), 73 Stat. 4.

[228]
Rice, 941 F. Supp. at 1529. Native Hawaiians were permitted to register
and cast ballots in the Native Hawaiian Vote. See
alsoRice, 941 F. Supp. at 1536. Ballots were distributed to
registered voters. Ballots had to be returned to HSEC by Aug. 15, 1996.
Votes were then counted on Aug. 23 and 24, 1996. Id.

[232]See “Setting the Record Straight: Fact and Fiction About HSEC and
the Native Hawaiian Vote” accessed at
<http://planet-hawaii.com/hsec/record.html>; Ron Staton, “Native
Hawaiians to Elect Delegates for Sovereignty Convention,” The
Associated Press, Jan. 15, 1999 (quoting a critic who called the process
“tainted” and the “kiss of death”), accessed at
<http://www.hawaii-nation.org/elect-delegates.html>.

[233]
For more information on the convention, visit
<http://www.hawaiianconvention.org>. Note that Ka Lahui Hawai‘i,
discussed elsewhere in this report, previously adopted its own constitution
in 1987, which provides for nation-within-a-nation status. The Nation of
Hawai‘i adopted its own constitution on Jan. 16, 1995, which provides for
independence. See
<http://www.Hawaii-nation.org/constitution.html>.

[235]
The great-grandfather of the plaintiff in the Rice case, William Hyde Rice, was part of the group that imposed the
Bayonet Constitution on King Kalakaua. Jon M. Van Dyke, “The ‘Painful
Irony’ of Rice v. Cayetano,”
written statement submitted to the Hawaii Advisory Committee, Sept. 29,
2000, p. 4, n.13 (hereafter cited as Van Dyke, “Painful Irony”).

[236]
Rice v. Cayetano, 963 F. Supp. 1547, 1548 (D. Haw. 1996). Because the
indigenous population of these islands is popularly known as “Hawaiian,”
this term obviously does not carry the same meaning as, for example,
Californian or Texan.

[239]Rice, 941 F. Supp. at 1534 n.1 (“Civil
Nos. 96-00390-DAE and 96-00616-DAE were consolidated for purposes of hearing
and adjudication of claims in connection with the Native Hawaiian Vote”).

[240]Id. at 1536–37 (citing Aug. 16,
1996, order granting in part and denying in part plaintiffs’ motion for
temporary restraining order).

[241]Id. at 1537. The Kakalia
plaintiffs apparently were concerned about the constitutionality of the
state’s involvement in specific activities—including a central
convention to draft a constitution and to discuss such issues as levying
taxes, regulating commerce, etc.—and breach of the trust relationship. Id.
at 1539 n.11. The court deferred ruling on issues concerning the convention
of delegates until such time as the legislature took further action. Id.
at 1539.

[242]
U.S. Const. amend. XIV, § 1. “All persons born or naturalized in
the United States, and subject to the jurisdiction thereof, are citizens of
the United States and of the state wherein they reside. No state shall make
or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any state deprive any person of
life, liberty or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.” Id.

[244]Id. at 1539 (citing Adarand
Constructors, Inc., v. Pena, 515 U.S. 200 (1995)). “A group classification
such as one based on race is ordinarily subjected to detailed judicial
scrutiny to ensure that the personal right to equal protection of the laws
has not been infringed. Under this reasoning, even supposedly benign racial
classifications must be subject to strict scrutiny.” Id.
at 1540.

[246]Id. at 555. “As long as the
special treatment can be tied rationally to the fulfillment of Congress’
unique obligation toward the Indians, such legislative judgments will not be
disturbed. Here, where the preference is reasonable and rationally designed
to further Indian self-government, we cannot say that Congress’
classification violates due process.” Id.
The Rice defendants refer to
various federal laws that classify Hawaiians as Native Americans.
Accordingly, for the purposes of establishing the suitable level of judicial
review, Hawaiians are comparable to Native Americans. Rice,
941 F. Supp. at 1539–40.

[247]417 U.S. at 533–54. The Mancari
court determined that the employment preference provided to Native American
Bureau of Indian Affairs positions was considered a political inclination,
not a racial preference. Id. at 551–52. The Court recognized that
Native American tribes are viewed in a unique constitutional status, which
is affected by the plenary power of Congress in Article I, § 8 of the
United States Constitution. Therefore, Congress has justified preferential
legislative provisions for Native Americans based upon the special
relationship that exists between Indian tribes and the federal government. See
also Moe v. Confederated Salish and Kootenai Tribes, 425 U.S. 463 (1976)
(immunity from state taxation on cigarette sales and personal property).

[250]
Id. at 1541–42 (citing United States v. John, 437 U.S. 634 (1978)).
Further, Congress enacted the HHCA to reserve particular public property as
Native Hawaiian lands. Id. at 1542. The district court was not
persuaded by the plaintiffs’ attempts to distinguish the Mancari
case. Id. Although it acknowledged that Native Hawaiians are not a
federally recognized tribal entity, it recognized that the U.S. Supreme
Court has applied a rational basis analysis for preferential legislation for
Native Americans who are not members of federally recognized tribes. Id.

[253]U.S. Const. amend. XV, §§ 1,
2. “The right of citizens of the United States to vote shall not be denied
or abridged by the United States or by any state on account of race, color,
or previous condition of servitude. . . . The Congress shall have power to
enforce this article by appropriate legislation.” Id.

[256]
377 U.S. 533 (1964). “[T]he Supreme Court held that the Equal Protection
Clause guarantees the opportunity for equal participation by all voters in
the election of state legislators. The court determined that in
representative elections, the concept of political equality would be
undermined unless [‘]as nearly as is practicable one man’s vote . . . is
to be worth as much as another’s.[’]” Rice,
941 F. Supp. at 1544 n.20(citing Reynolds,
377 U.S. at 559).

[257]Rice, 941 F. Supp. at 1544 (citing Ball,
451 U.S. at 355; Salyer, 410 U.S.
at 730–35). In Salyer, the Court
applied a rational basis test to uphold the constitutionality of a
California voter eligibility statute that restricted voting in an election
to select water district directors to those who owned property.

[259]U.S. Const. art. VI, cl. 2. The
supremacy clause states in relevant part: “This Constitution and the Laws
of the United States shall be made in pursuance thereof; and all Treaties
made, or which shall be made, under the Authority of the United States,
shall be the supreme Law of the Land; and the Judges in every State shall be
bound thereby, anything in the Constitution or Laws of any State to the
Contrary notwithstanding.” Id. The
plaintiffs in Rice contended that
“[a]ssuming the most extreme case, by enacting Act 359 the State of Hawai‘i
has committed itself to a process which may result in the establishment of a
foreign nation which exercises exclusive control over all of the lands which
currently constitute the public domain of the State.” Rice,
941 F. Supp. at 1547.

[261]Rice, 941 F. Supp. at 1547 (citing
California Fed., 479 U.S. at 280–81).
The Rice court found that the
other two tests of federal preemption “(1) where Congress expressly
preempts state law; (2) where state and federal law actually conflict” did
not apply in this matter. Id.

[264]Id. at 1551. The plaintiffs
maintained that § 5(f) of the Admission Act of 1959, relating to using a
portion of the proceeds from the trust lands “for the betterment of the
conditions of Native Hawaiians” had been violated.

[266]Id. at 1552–53. The court
determined that preventing the announcement of the vote would only impede
the public’s confidence in the democratic process.

[267]Fed. R. Civ. P. 56(c). “[T]he
pleadings, depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no genuine issue as
to any material fact and that the moving party is entitled to a judgment as
a matter of law.” Id. The party
requesting the motion for summary judgment has the burden of “identifying
. . . those portions of the material on file that it believes demonstrates
the absence of any genuine issue of material fact.” T.W. Elec. Serv.,
Inc., v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir.
1987). After the (moving) party who is seeking the motion for summary
judgment has met its burden of proving there is no issue of material fact in
the case, “the non-moving party must show that there are ‘genuine
factual issues that properly can be resolved only by a finder of fact
because they may reasonably be in favor of either party.’ ” California
Architectural Bldg. Prod. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th
Cir. 1987) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986)).

[269]Haw. Rev. Stat. § 13D-1
(2000). “The board of trustees shall be composed of nine members elected
at-large by qualified voters in the State who are Hawaiian.” Id.

[270]Rice, 963 F. Supp. at 1549–50.
The defendant noted that Congress has identified Native Hawaiians for
rehabilitation and special attention. Id.
Further, “[t]he State of Hawaii has a unique obligation to the Native
Hawaiian population with fiduciary duties similar to those owed by the
federal government to Native Americans, and that the State has a special
responsibility to protect traditional rights of access to land for
subsistence, cultural and religious purposes.” Id.
The state’s relationship to the Native Hawaiians is therefore similar to
the federal government’s connection with Native American groups. Id.

[271]Rice, 963 F. Supp. at 1553. The court observed that the administrative
procedures for obtaining federal recognition or “acknowledgment” exclude
aboriginal people who are from outside the continental United States. Id.
(citing William W. Quinn, “Federal Acknowledgment of American Indian
Tribes: The Historical Development of a Legal Concept,” American
Journal of Legal History, vol. 34 (1990), p. 331). “[O]nly Indian
tribes that were acknowledged would be provided with services and dealt with
in trust relationships.” Quinn, “Federal Acknowledgement,” p. 347. See
also Montoya v. United States, 180 U.S. 261, 266 (1901) (providing
common law requirements for Indian tribe status); United States v.
Washington, 520 F.2d 676 (9th Cir. 1975) (holding that tribal rights were
predicated on receiving federal acknowledgment).

[273]Id. at 1554. “[T]he requirements
of the Fourteenth and Fifteenth Amendments are not violated because the
restriction on the right to vote is not based upon race, but upon a
recognition of the unique status of Native Hawaiians.” Id.

[274]
Id. at 1555. The plaintiff relies upon Washington v. Confederated Bands
& Tribes of the Yakima Indian Nation, 439 U.S. 463, 500–01 (1979)
(observing that states do not enjoy the same unique relationship with
Indians that permits the federal government to enact legislation singling
out tribal Indians). Id.; but see id.
at 501 (applying rational basis scrutiny to state legislation enacted “under
explicit authority granted by Congress”).

[277]SeeHaw.
Rev. Stat. §§ 10-4, 10-6 (2000). The general duties of OHA’s
board of trustees shall be “(1) To develop, implement, and continually
update a comprehensive master plan for native Hawaiians and Hawaiians. . . .
(2) To assist in the development of state and county agency plans for native
Hawaiian and Hawaiian programs and services; (3) To maintain an inventory of
federal, state, county, and private programs and services for Hawaiians and
native Hawaiians and act as a clearinghouse and referral agency; (4) To
advise and inform federal, state, and county officials about native Hawaiian
and Hawaiian programs, and coordinate federal, state, and county activities
relating to native Hawaiians and Hawaiians; (5) To conduct, encourage, and
maintain research relating to native Hawaiians and Hawaiians; (6) To develop
and review models for comprehensive native Hawaiian and Hawaiian programs;
(7) To act as a clearinghouse for applications for federal or state
assistance to carry out native Hawaiian or Hawaiian programs or projects;
(8) To apply for, accept and administer any federal funds made available or
allotted under any federal act for native Hawaiians or Hawaiians; and (9) To
promote and assist the establishment of agencies to serve native Hawaiians
and Hawaiians.” Id. § 10-6.

[278]
Rice, 963 F. Supp. at 1555. In Salyer,
the Court applied a rational basis test to uphold the constitutionality of a
California voter eligibility statute that restricted voting in an election
to select water district directors to those who owned property. Salyer v.
Tullare, 410 U.S. 719 (1973).

[280]Id. at 1557 (citing Bd. of
Estimate of New York v. Morris, 489 U.S. 688, 696 (1989)). The district
court distinguishes the facts in the instant case from those in Morris, where the U.S. Supreme Court found that New York City’s
Board of Estimate was “comfortably within the category of governmental
bodies whose ‘powers are general enough and have sufficient impact
throughout the district’ to require that elections to the body comply with
equal protection strictures.”

[286]Id. at 1078–79. Furthermore,
according to the defendants, no intentional racial discrimination occurred
because Congress required that the newly created State of Hawai‘i accept
the definition of “native Hawaiian” in the HHCA and comply with the
trust obligations to improve the condition of Native Hawaiians. But see id. at 1079. Rice asserted that the legal status of being a
beneficiary of the trust is centered on race.

[287]
Id. at 1079 (citing Haw. Rev. Stat.
§ 10-16(c) (2000) for the proposition that board members could be subject
to litigation for instances of breach of fiduciary duty).

[288]Id. at 1080. The Court relied upon
precedent established in Salyer,Ball,
and Reynolds.

[289]
Id. at 1081. The federal government’s preferential treatment toward
Native Americans is a political consideration, instead of a racial
classification. Race may be used as eligibility criteria for the
entitlement. Alaska Chapter, Associated Gen. Contractors, v. Pierce, 694
F.2d 1162 (9th Cir. 1982). The court felt compelled to adhere to the U.S.
Supreme Court’s ruling in Mancari
and its own prior decisions in the Ninth Circuit, such as Pierce. Rice, 146 F.3d at
1081 n.17.

[290]Rice, 146 F.3d at 1081; see
1 Proceedings of the Constitutional Convention of Hawai‘i of 1978, Standing
Comm.Rep. No. 59 at
644. The committee stated that there should be elected trustees so that “people
to whom assets belong should have control over them. . . . The election of
the board will enhance representative governance and decision-making
accountability and, as a result, strengthen the fiduciary relationship
between the board member, as trustee, and the native Hawaiian, as
beneficiary.” Id.

Amici
curiae briefs supporting Rice were filed by Campaign for a Color-Blind
America, Americans Against Discrimination and Preferences, and the United
States Justice Foundation; Center for Equal Opportunity, New York Civil
Rights Coalition, Carl Cohen, and Abigail Thernstrom; and Pacific Legal
Foundation.

[296]Rice, 120 S. Ct. at 1047–48.
Justice Kennedy delivered the opinion of the Court, joined by Justices
Rehnquist, O’Connor, Scalia, and Thomas. Justice Breyer filed an opinion
that concurred in the result of the majority’s opinion, which was joined
by Justice Souter. Justice Stevens filed a dissenting opinion, joined in
part by Justice Ginsburg, who also filed a separate dissenting opinion.

[297]
To view the legal briefs submitted by the parties and numerous amici
curiae in this case, access
<http://supreme.lp.findlaw.com/supreme_court/docket/octdocket.htm#98-818>.
<http://www.nativehawaiians.com/legal_doc.html>; See also
<http://www.all4aloha.org/headingsaloha4.html>. For contrary
viewpoints, access <http://www.aloha4all.org>,
<www.angelfire.com/hi2/hawaiiansovereignty/index.html>, or <http://
www.hawaiimatters.com>.

[303]
Therefore, the voting requirements were primarily designed to carry out the
mandate of the government’s special obligation to Native Hawaiians. Having
indigenous Hawaiians elect OHA trustees promotes self-determination by
Native Hawaiians and helps to ensure that OHA will administer the trust in a
way that is responsive to their interests. Accordingly, the voting
requirements for trustees of the OHA are rationally related to the
fulfillment of Congress’ unique obligation to Native Hawaiians. The Court
in Mancari held that because the BIA preference could be “tied
rationally to the fulfillment of Congress’ unique obligation toward the
Indians” and was “reasonably and rationally designed to further Indian
self-government,” it did not offend the Constitution. Mancari, 417
U.S. at 555. Similarly, the district court found that the electoral scheme
was “rationally related to the State’s responsibility under the
Admission Act to utilize a portion of the proceeds from the Section 5(b)
lands for the betterment of Native Hawaiians” and therefore the voting
restriction did not violate the Constitution’s ban on racial
classifications. Rice, 963 F. Supp. at 1555. The Ninth Circuit held
that “to accept the trusts and their administrative structure as [it
found] them, and assume that both are lawful,” then Hawai‘i “may
rationally conclude that Hawaiians, being the group to whom trust
obligations run and to whom OHA trustees owe a duty of loyalty, should be
the group to decide who the trustees ought to be.” Rice, 146 F.3d
at 1079.

[306]
Congress has explicitly recognized OHA’s role in administering programs
for Native Hawaiians, finding that OHA “serves and represents the
interests of Native Hawaiians,” and that OHA “has as a primary and
stated purpose the provision of services to Native Hawaiians.” 16 U.S.C.
§ 470w(18) (1994), and Congress has also made OHA eligible to administer
federal programs on behalf of Native Hawaiians. 16 U.S.C. § 470w(18)
(1994); 20 U.S.C. §§ 4441(c)(2)(B) (1994), 7904(b)(3) and (f) (1994); 42
U.S.C. §§ 2991b-1(a) (1994), 11711(7)(A)(ii) (1994). Congress has also
been fully aware that OHA trustees are elected by indigenous Hawaiians. See
S. Rep. No. 100-581 (1988)
(concluding that the election of the OHA trustees by Native Hawaiians
represents “a rational means of effectuating the state’s obligation
under the trust relationship to Native Hawaiians”).

[320]Id. at 1064 (citing United States
v. Kagama, 118 U.S. 375, 383–84 (1886)). “These Indian tribes are the
wards of the nation. They are communities dependent on the United States.
Dependent largely for their daily food. Dependent for their political
rights. . . . From their very weakness and helplessness, so largely due to
the course of dealing of the Federal Government with them and the treaties
in which it has been promised, there arises the duty of protection, and with
it the power.” Id. Seealso United States v. Sandoval, 231 U.S. 28 (1913).

[332]Id. at 1071. “Conversely, unlike
many of the old southern voting schemes in which any potential voter with a
‘taint’ of non-Hawaiian blood would be excluded, the OHA scheme excludes
no descendant of a 1778 resident because he or she is also part European,
Asian, or African as a matter of race. The classification here is thus both
too inclusive and not inclusive enough to fall strictly along racial lines.”
Id.

Regarding
this democratic vote of a multiracial majority of all state citizens, which
included non-Native Hawaiians who are not eligible to participate in OHA’s
trustee elections, Associate Justice Simeon Acoba of the Hawai‘i
Supreme Court made the following incisive observation:

“In
concluding its decision, the Rice majority reminded the State of
Hawai‘i that ‘it must, as always, seek . . . political consensus . . .
[and o]ne of the necessary beginning points is this principle: The
Constitution of the United States, too, has become the heritage of all the
citizens of Hawai‘i.’ Rice, . . . 120 S. at 1060. I do not
understand the State’s position to have ever disavowed our constitutional
heritage and find nothing in the decisions of Judge David Ezra of the Hawai‘i
Federal District Court, or in the opinions of the Ninth Circuit Court of
Appeals, or of the dissenting United States Supreme Court justices espousing
that view of the State’s arguments. The
history of Hawai‘i and its peoples demonstrates nothing, if not the
wholesale embracement of democratic principles. Few places in the United
States have brought democracy’s promise closer to reality, see id. at . .
. 1054, and a more successful marriage between constitution and culture, as
that exemplified in our State, can hardly be found. Hawai‘i has affirmed
our constitutional heritage, Hawai‘i has upheld that heritage, and Hawai‘i’s
own have many times been in the forefront of defending it.”

[340]Rice v. Cayetano, Civ. No.
96-00390-DAE (D. Haw. Apr. 7, 2000) (Transcript of Proceedings, Hearing on
Remand from the United States Supreme Court; U.S. Court of Appeals for the
Ninth Circuit; Motion to Intervene).

[361]
In the past, the Department of the Interior itself had taken the position
that Native Hawaiians were not like other native peoples. Legal experts have
praised the United States Solicitor General’s brief filed in support of
the Respondent State of Hawai‘i in the Rice
case. According to one speaker, this brief represented the first time the
executive department of the United States supported the special trust
relationship between Native Hawaiians and the federal government. Broder
statement, Forum 2000 Transcript, pp. 149–50.

[374]
In the aftermath of the Rice
decision, Governor Cayetano declared his intention to replace the elected
trustees with appointees of his own choosing. OHA disagreed, and on Mar. 30,
2000, submitted the dispute to the Supreme Court of Hawai‘i for
resolution. In Office of Hawaiian Affairs v. Cayetano, 94 Hawai‘i 1, 6
P.3d 799 (2000), the court held that the Rice
decision transformed the sitting trustees’ status from de jure to de facto but
did not create any immediate OHA vacancies. Id. at 8, 6 P.3d at 806.
The court deferred judgment, however, on the question whether the trustees
should remain in office, stating that the more appropriate procedure would
be for the state to file a quo warranto petition. Id. at 8–9, P.3d
at 806–07.

With
the deadline for declaring one’s candidacy under the 2000 election
looming, all nine Native Hawaiian trustees (including an individual
previously appointed by Cayetano to fill a vacant seat) resigned from office
in an act of solidarity. Pat Omandam, “OHA trustees resign,” The
Honolulu Star-Bulletin, Sept. 8, 2000, accessed at
<http://starbulletin.com/2000/09/08/news/index.html>. Rather than risk
the possibility of having a majority of the board appointed by the governor
for two years until the 2002 election (i.e., if a subsequent quo warranto
petition were decided in the state’s favor), the trustees decided to seek
reelection in 2000. Ibid. Native Hawaiians protested Cayetano’s subsequent
interim appointments, expressing concerns about pending multimillion dollar
claims against the state relating to revenues from the ceded lands trust
revenues allegedly owed to OHA. Pat Omandam, “Some
are protesting Cayetano’s appointments to OHA board,”The
Honolulu Star-Bulletin, Sept. 12, 2000, accessed at
<http://starbulletin.com/2000/09/12/news/index.html>. In the 2000
election, Charles Ota, a non-Native Hawaiian, was elected to one of the
abandoned seats (four out of the nine former trustees were voted out of
office).

[390]
Clayton Hee statement, Forum 2000 Transcript, p. 165; see also Aranza
statement, Forum 1998 Transcript, vol. 2, p. 220 (calling “the diversity
of opinion and perspective” a strength and observing that “all are
united in the common objective, that something must be done”).

[413]But see Recognition Legislation, S. 746, 107th Cong., 1st Sess., §
9(b) (2001) (“Nothing contained in this Act shall be construed as an
authorization for eligibility to participate in any programs and services
provided by the Bureau of Indian Affairs for any persons not otherwise
eligible for such programs or services”).

[416]See Philip P. Frickey, “Adjudication and Its Discontents: Coherence
and Conciliation in Federal Indian Law,” Harvard Law Review, vol.
110 (1997), p. 1764 (suggesting that Professor Benjamin’s analysis is
analogous to the Wizard of Oz telling the reader to pay no attention to what
is behind the curtain); ibid., p. 1757 (“unless injected with a heavy dose
of historical perspective and legal realism, formal lawyerly analysis not
only often fails to illuminate the issues in federal Indian law, but can
also result in deceiving conclusions”).

[419]See generally Eric K. Yamamoto, et al., “Dismantling Civil Rights:
Multiracial Resistance and Reconstruction,” Cumberland Law Review,
vol. 31 (2001). The article suggests further that we are in the midst of a
dismantling of the Second Reconstruction, which came to being as a result of
the civil rights movement of the 1950s and 1960s.

[420]
In Texas v. White, 74 U.S. 700 (1868), the Court appears to have suggested
that the otherwise indestructible Union nevertheless contemplates the possibility,
however remote that may be, that the other states could give their consent
to the withdrawal of a sister state. Id.
at 725 (“The union between Texas and the other States was as complete, as
perpetual, and as indissoluble as the union between the original States.
There was no place for reconsideration, or revocation, except
through revolution, or through consent
of the States.”) (emphasis added).

[421]
The Advisory Committee believes that permitting the assumption of
programmatic responsibility for congressional initiatives designed to
benefit Native Hawaiians will promote self-determination and
self-governance.

[426]
Christensen statement, Forum 1998 Transcript, vol. 1, p. 70 (observing that
“[s]ince statehood, the state has managed the public lands in a way that
suggests that the state is more willing to subsidize whatever special
interest seems desirable at the time, by charging very low rents for the use
of public lands for private purposes”). See also DeSoto statement,
Forum 1998 Transcript, vol. 2, pp. 176–78 (discussing state efforts to
diminish Hawaiian entitlements, including placing a cap on OHA’s share of
ceded lands revenues).

[428]
Hoshijo statement, Forum 2000 Transcript, p. 89. See also Chris
Iijima, “Race Over Rice: Binary
Analytical Boxes and a 21st Century Endorsement of 19th Century Imperialism
in Rice v. Cayetano,”Rutgers Law Review,vol. 53 (2001) (forthcoming) (“standard civil rights and equal
protection doctrines do not apply to circumstances involving the remedy for
the displacement of a sovereign people from their homeland”).